THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
75 Yale L. J. 1007
Yale Law Journal
May, 1966
NOTE AND COMMENT
THEORIES OF FEDERALISM AND CIVIL RIGHTS
Copyright © 1966 by the Yale Law Journal Company, Inc.
Harassed by local officials and private vigilantes, civil rights workers in the South have sought federal protection. 1 To avoid
the charade of trial in hostile state courts, they have asked federal courts to quash sham criminal prosecutions. 2 To deter
violence, they have asked the Department of Justice for prosecutions under the civil rights statutes and, in extreme situations,
for the presence of enforcement personnel. 3 But federal officials have hesitated to disturb the autonomy of local law
enforcement institutions, even where intervention has been necessary to assure the supremacy of federal law.
Behind these inhibitions is a theory of federalism, articulated mainly by Justices Frankfurter, Jackson, and Harlan, and, most
recently, by former Assistant Attorney General Burke Marshall.4 Though nevergiven *1008 a full-dress statement, this theory
provides the conventional wisdom with the notion that federalism is simply a device for “dispersing” or “diluting”
government power.5 From this notion springs fear that federal activism entails harm to federalism. 6
But federalism is a more complex mechanism. It is also designed to check abuses by dominant local factions, a task assigned
to the central agencies and diverse constituency of the federal government. So understood, the objectives of federalism
support intervention in today’s deep South.
*1009 I. THE RATIONALE OF RESTRAINT: SEPARATE FUNCTIONS FOR SEPARATE POLITICAL
SYSTEMS
To justify restraint, contemporary theorists invoke a model of the federal system shaped by the concept of separation of
powers.7 The federal government is responsible for “national” functions, such as maintaining a sound economy. State
governments are charged with “local” responsibilities, in particular preserving order through tort and criminal law. Whenever
the federal government takes over local police powers, federalism is jeopardized.8
A. State Autonomy under the Reconstruction Amendments: “Under Color of Law” and “Comity”
The fourteenth and fifteenth amendments preclude strict separation of functions; even if narrowly construed, the amendments
require occasional Supreme Court review of state tort and criminal cases. Contemporary separate function theorists endorse
Supreme Court review under the amendments. But they preserve state autonomy by distinguishing Supreme Court review
from “direct intervention,”9 which includes allforms *1010 of federal action undertaken before the state has authoritatively
defined its position. Intervention is permissible only if, as in the case of Supreme Court review, it follows state refusal to
honor federal rights. Until the state’s option to afford protection has lapsed, federal institutions must stand aside. 10
Separate function theorists have brought this concept of state autonomy to two doctrinal controversies: (1) the meaning of the
phrase “under color of law,” in statutes which prohibit state officials from interfering with civil rights; 11 and (2) the uses of
the principle of comity in civil rights cases. Originally, “under color of law” was construed to include any interference with
federal rights by a state official.12 Thus a heavy-handed sheriff might be subject to federal prosecution, even if he had also
violated state law. Justices Frankfurter and Jackson saw this overlapping federal jurisdiction as a dangerous invasion of state
autonomy. By providing a remedy, they argued, the state had exercised its option to protect federal rights. Therefore, conduct
interfering with civil rights, if prohibited by state law, was action “in defiance of” rather than “under color of” law. 13
*1011 Frankfurter and Jackson claimed to be faithfully serving the original intent of the Reconstruction Congress. 14 But
these prophets of restraint, who frequently castigated the Radicals’ “vengeful spirit,” 15 could not have thought that Thaddeus
Stevens shared their scruples about federal intervention. Frequently, they implied that their narrow construction set the
constitutional limits of congressional power under the amendments. Conduct which violated state law they considered
“unauthorized” by the state. Hence, it was not “state action,” and Congress was powerless to act under the amendments. 16
Only when the authoritative institutions of the state flouted federal rights, could Congress act:
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
The commands of the Fourteenth Amendment were addressed to the States. Only when the States, through their responsible
organs for the formulation and administration of local policy, sought ... to deprive the individual of a certain minimal fairness
in the exercise of the coercive forces of the State, or without reasonable justification to treat him differently than other
persons subject to their jurisdiction, was an overriding federal sanction imposed ....
This conception begot the “State action” principle on which, from the time of The Civil Rights Cases ..., this Court has relied
in its application of Fourteenth Amendment guarantees.17
In many cases, Frankfurter and Jackson endorsed far more expansive definitions of state action. 18 But federal displacement of
state police powers provoked unique concern. At one point, Justice Frankfurter decided that his antagonism to direct
intervention was a matter “approximating constitutional dimension ...”19
*1012 More often than not, Supreme Court majorities rejected narrow construction of civil rights statutes. 20 Nevertheless,
these laws never became the threat to state autonomy which Frankfurter and Jackson feared, for separate function principles
soon captured the Department of Justice.21 Department officials neglected the civil rights criminal statutes and refused to
send federal enforcement officials to the deep South. 22 Hence the task of applying the Court’s relatively broad definition of
federal power fell to private litigants.
But, in administering relief under the civil rights statutes, the courts kept faith with separate function principles, by broadly
interpreting the principle of comity. Incorporated in several judge-made and statutory rules, comity cautions federal judges to
give state courts every opportunity to reconcile state legislation with the Constitution. For example, the “abstention” doctrine,
born in a Frankfurter opinion for the Court, 23 requires that district courts remand to the state judiciary constitutional
challenges to ambiguous state statutes. This gives the state court a chance to save the statute through narrow construction. 24
Kindred rules forbid injunction of either threatened 25 or pending26 *1013 state proceedings, even though they might
jeopardize federal rights. Comity also accounts for the cold reception given two Reconstruction-born remedies for
unconstitutional prosecutions. To avoid disruption of state criminal proceedings, a hearing on federal habeas corpus must
await exhaustion of state remedies.27 Similarly, removal under the civil rights removal statute is limited to cases where a
finding of racial bias is compelled by obviously invalid state statutes. 28
Despite boilerplate about the states’ sovereign dignity and the integrity of local courts, most judges treat rules of comity as
instruments of efficient administration.29 Abstention is supposed to avoid the creation of unstable precedents. 30
Noninterference with state criminal proceedingsensures *1014 orderly procedures for prosecution, trial, and appeal. 31
But separate function theorists see in comity a vindication of their concept of state autonomy. In effect, the rules of comity
prevent direct intervention by the judiciary. They keep district courts from directly participating in the administration of local
criminal justice, confining federal action to review by the Supreme Court. Like the Frankfurter-Jackson interpretation of
“under color of law,” comity implements the notion of the state as an integral institutional system. Federal action must wait
for the state to authoritatively declare its position on a matter, “so that federal judgment will be based on a complete product
of the state, ... enactments as phrased by its legislature and construed by its highest court ....” 32
B. Massive Resistance versus Federal Supremacy: Comity as a Safeguard of State Political Power
Under normal conditions, comity does not impair the enjoyment of federal rights. State courts are presumed to protect
constitutional rights in good faith.33 Ordinarily, the presumption is justified. If state judges misapply the Reconstruction
amendments in a given case, Supreme Court review can vindicate the individual complainant.
In the South massive resistance to the civil rights movement disrupted this comfortable pattern. Rules of comity denied
effective federal relief to victims of groundless prosecutions; extraordinary bail charges and deliberate delays on appeal made
Supreme Court review an expensive, time-consuming, and merely temporary respite from perpetual harassment.34 At the
same time, executive policies of deference to local law enforcement officials left no remedy for police brutality and private
violence.35
Under these novel circumstances, some Southern federal judges and a minority of the Supreme Court concluded that
rebellious state institutionswere *1015 undeserving of comity.36 In their view, massive resistance contradicted comity’s two
presumptions. State legislation aimed at “undermining federal law” showed that state institutions would not protect federal
rights in good faith;37 systematic harassment meant that Supreme Court review would not adequately protect civil rights. 38
For the separate function school, however, massive resistance did not justify relaxing the rules of comity. When the NAACP
asked a federal district court for direct relief from the Virginia statutes designed to drive it from the state, Justice Harlan
ordered the district court to abstain.39 His opinion for the Court ignored the district court’s justification for relief—that
Virginia’s avowed purpose was to obstruct federal law. 40 The Department of Justice applied its own version of comity, even
where state officials acted in bad faith. Although he was sure of “official wholesale local interference with the exercise of
federal constitutional rights,” Burke Marshall believed that it was necessary to respect comity principles. 41 Marshall even
maintained that the President was constitutionally bound to accept, prior to the Alabama freedom rider’s crisis, Governor
Patterson’s promise to prevent violence.42
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The two approaches to comity reflect two distinct theories of the federal system. For those who think that massive resistance
makes comity inappropriate, the organizing principle is federal legal supremacy. In their view, the supremacy clause requires
federal intervention whenever the states deliberately violate their federal obligations. Administrative convenience and respect
for local officials give way before the overriding obligation to ensure the supremacy of federal law. 43
But in the separate function model, federal supremacy is not controlling. Where comity clashes with federal supremacy, the
conflict is resolved in favor of comity.44
*1016 Separate function theorists do not ignore the supremacy clause in every instance of nullification. They would allow the
federal government to sweep aside state obstruction of a specific federal court order, as in Little Rock, where Governor
Faubus sent his militia to thwart a district court’s integration decree. 45 But what federalism dictates in Little Rock, it
prohibits in Jackson, where police jailed freedom riders in deliberate violation of rights established by decades of
precedent.46 Except where nullification assumes the form of contempt of court, the federal government must stay its hand.
Why do separate function theorists treat Jackson so differently from Little Rock? The distinction they see, like their
separation of Supreme Court review from “direct intervention,” reflects a preoccupation with the political dimension of
federal-state relations. Their overriding goal is to maintain a stable political relationship between the state and federal
governments. To ensure stability, both state and nation must have sufficient power to guarantee their independence. It is to
preserve this “require[d] ... balance of political forces” that the federal judiciary and the Justice Department must subordinate
federal legal supremacy to separate function principles.47
This emphasis on the political consequences of federal action explains the insistence that preservation of domestic order is a
local function. States must retain this prerogative because of the power inherentin *1017 administrative control of civil and
criminal justice. Thus the kinds of intervention necessary to enforce federal law in Jackson would threaten the states’
monopoly of administrative responsibility. Federal authority to abort state criminal prosecutions might make district courts
meddlesome overseers of state trials. Widespread enforcement of federal criminal legislation might lead to FBI control of
local police forces.48 Such threats to state power must be quashed, if the states are to retain the political independence
required by federalism—an independence confirmed by the South’s ability to defy the federal law of racial equality.
But protecting state administrative power does not bar federal intervention in all cases. Supreme Court review and even
military enforcement of a particular court order, as in Little Rock, are tolerable. As ceremonial functions, these forms of
intervention dramatize the federal obligations of local officials. But however dramatic, Supreme Court review and military
intervention involve only rare and momentary displacements of local authority. Habeas corpus provides a more immediate
potential for interference, but “exhaustion” insures that habeas corpus will impose no prior restraints on state officials. Thus
limited, federal action will not sap the strength of local institutions charged with day-to-day administrative responsibility.
These tacit assumptions explain the familiar saw that the fourteenth amendment worked no basic change in federal-state
relations.49 On its face this statement is mystifying, for the amendment reordered the legal relations between state and nation
by imposing federal restrictions on every act attributable to a state. But theorists concerned with political power, rather than
abstract legal relations, recognize that new federal law does not by itself have political impact. In separate function theory,
the amendments did not change federal-state relations significantly, because they brought no expansion of federal
administrative power.
II. CONTEMPORARY THEORY IN HISTORICAL PERSPECTIVE
Proponents of restraint in the South invoke federalism with a confidence which suggests that their theory is the only model
for resolvingfederal-state *1018 conflict. But among historically significant analyses, only the anti-Federalist theories of
Jefferson and Calhoun would bar direct protection for Southern civil rights activities. Congress and the Supreme Court have
generally preferred the Federalists’ theory to the anti-Federalist notion that state autonomy should be valued above federal
legal supremacy.50 By introducing the concept of checks and balances, the Federalists provided for a more flexible
distribution of state and federal power, compatible with forceful action in the service of federal supremacy.
A. Pre-Civil War Theories: Jefferson and Calhoun versus the Federalists
After ratification of the Constitution, controversy continued over the relative scope of state and federal power. 51 Like current
theory, Thomas Jefferson’s analysis of the federal system divided power between state and nation according to a distinction
between local and national functions.52 Jefferson’s separation-of-powers approach precluded intervention to enforce federal
law.53
Later John C. Calhoun devised the doctrine of concurrent majorities to protect geographic minorities from federal power. 54
Calhoun believed that the states had remained “sovereign” after the ratification ofthe *1019 Constitution.55 Because
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sovereignty was “indivisible,”56 a federal law could not be enforced within the borders of a state where it had been formally
“nullified.” Only a constitutional amendment could force the state to comply. 57
Contemporary theory differs tangibly from Calhoun’s. It limits federal power by restricting methods of enforcement, instead
of denying the validity of federal law. Its concepts are functional, rather than legalistic; it avoids the rhetoric of
“sovereignty.” But generic similarities link Calhoun and the separate function theorists. The concept of state government as
an integral decision process is akin to Calhoun’s indivisible state sovereignty. 58 Frankfurter’s aversion to “determinations of
ultimate power”59 requires an accommodation to state nullification which differs chiefly in mechanics and terminology from
Calhoun’s “concurrent majorities.”60
Jefferson and Calhoun framed their theories in response to the Federalists’ campaign for a strong central government. 61 The
Federalists attacked the “idea of an absolute separation and independence” as if the states and federal governments “belonged
to different nations.”62 In their view, emphasis on federal supremacy distinguished the federal plan of the Constitution from
that of the Articles of Confederation. According to Hamilton, national law under the Articles was addressed to the states
alone, whereas the Constitution subjected individuals directly to federal law and permitted federal action to secure individual
obedience:
The great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or
governments, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist
....The *1020 consequence of this is that though in theory federal resolutions ... are laws constitutionally binding on the
members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option
....
If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations,
there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a
constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves ....
The federal government ... must stand in need of no intermediate legislations, but must itself be empowered to employ the
arm of the ordinary magistrate to execute its own resolutions. 63
Following the Federalists’ directions, the Constitutional Convention allowed for federal trial courts, to assure enforcement of
locally unpopular legislation.64 Supreme Court Justice Joseph Story later wrote Hamilton’s connection between federal
supremacy and plenary enforcement power into constitutional doctrine. Rejecting a constitutional attack on fugitive slave
criminal legislation, he held in Prigg v. Pennsylvania that Congress had implied power to secure enjoyment of any federal
constitutional right, by proscribing any form of interference:
If, indeed, the constitution guarantees the right, and if it requires the delivery upon the claim of the owner ....
the natural inference is, that the national government is clothed with the appropriate authority and functions to
enforce it. The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end
is required, the means are given ....65
Prigg demonstrated the Supreme Court’s commitment to broad federal jurisdiction under the supremacy clause—in the
context, however, of a Constitution which allowed for little encroachment on state police power.
B. The Post-War Court, Federal Supremacy, and the Reconstruction Amendments
The Reconstruction amendments prompted the Court to reconsider its commitment to federal supremacy theory. If the
amendments were construed to give Congress and the President power to prevent all forms of interference, public and
private, vast changes might occur in federal-state relations. The vague multitude of rights covered by thefourteenth *1021
amendment, in particular, could justify federal intrusion into areas of law and administration which had been governed solely,
and quite adequately, by state law.66
To avoid this redistribution of police power, the Court in 1873 removed the fourteenth amendment from the reach of Justice
Story’s implied power doctrine.67 The amendment, it was reasoned, did not “create” constitutional rights, since the rights it
specified had previously been granted by state law. Hence they were not federal rights at all, and Congress had no implied
power to enforce the amendment. As rights “incident” only to “state citizenship,” fourteenth amendment rights could be
protected only against “state action.”68
Noting the Court’s refusal to imply full enforcement power from the fourteenth amendment, contemporary opponents of
intervention believe its decisions confirm their own inflexible aversion to federal law enforcement responsibility. 69 But they
have misconstrued the post-Civil War Court’s doctrine and the theory of federalism it reveals. In fact, the Court qualified its
general preference for local power by approving federal protection for the Southern Negro. 70 It wished to allow the federal
government to suppress racial violence in the South, but not to intervene elsewhere for other purposes. The Court achieved its
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competing aims by distinguishing the fourteenth from the fifteenth amendment. Unlike the fourteenth amendment, the
fifteenth was held to “create” a “new” right, the right to vote irrespective of race. Under the implied power doctrine, the
federal government could act against all forms of interference with Negro voting rights. Thus, in fifteenth amendment cases
the “state action” doctrine was inapposite. Even if the state allowed Negro voting, the federal government might prevent
private intimidation.71
The fifteenth amendment affected only political warfare between whites and Negroes. Having thus limited federal power to
intervene,the *1022 Court contemplated no limitations on the manner of its exercise. Since all racial intimidation was in part
aimed at driving the Negro from politics, the fifteenth amendment by itself placed Southern terrorism within reach of
Congress and the Attorney General.72 The Court recognized that its acceptance of federal supremacy doctrine could justify
federal displacement of local law enforcement:
We hold it to be an incontrovertible principle that the government of the United States may, by means of
physical force exercised through its official agents, execute on every foot of American soil the powers to
command obedience to its laws and hence the power to keep the peace to that extent.73
C. Dynamics of the Federalists’ Model: Checks and Balances and the Guarantee Clause
The Court never explained its theory of federalism when endorsing intervention in the South, and the rationale of its
decisions has since been forgotten.74 To find theoretical support for the Court’s position, we must return to the Federalists’
analysis. In the Federalists’ view, it was unrealistic to confer on any single institution an outright monopoly over specified
functions. Each institution would inevitably reach for a share of control over functions legally the sole province of others.
Moreover, striving for an absolute separation of functions was dangerous; it would create pockets of uncontrolled power,
susceptible to abuse. Flexible sharing of functions ensured that the power of one institution would be “checked and balanced”
by the power of others.75
This checks and balances mechanism distinguishes the Federalists’ model of federal-state relations. In the “compound
republic” contemplated in the Constitution, Madison explained:
... a double security arises to the rights of the people. The different governments will control each other, and at
the same time each will be controlled by itself.76
*1023 In particular, the Federalists favored a protective role for the federal government; thus, their emphasis on federal legal
supremacy.77
Madison’s theory of factions justified this intervention in affairs normally the business of the states. In the Madisonian state
all factions would participate, none would dominate. For a single faction in command of the government would inevitably
suppress other groups and destroy individual rights. 78 Madison believed that the states were more likely than the federal
government to fall prey to a single oppressive faction. The states were smaller, contained fewer factions, and hence were
more susceptible to single-interest majorities. In contrast, the multiplicity of factions across the nation would prevent one
from capturing the federal government. Thus, the system’s ultimate guarantee of political liberty was the power of the federal
government to prevent abuse of state power by local majorities. 79
Madison never specified which forms federal intervention should take. The Federalists may have thought that intervention
would normally include judicial review under the few prohibitions on the states written into the original Constitution. 80 One
danger, however, was felt to warrant explicit constitutional provision. This was the possibility that factional domination
would destroy the republican character of a state’s government. Unless the system could check anti-republican “usurpations,”
the people of a captured state would lose their liberty, and republicanism across the nation would be threatened. 81 To counter
this threat, the Federalists wrote into the Constitution the command of Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican form of Government .... 82
They intended this clause to grant the federal government whatever power was necessary to restore republicanism, or as the
concept is now understood, representative democracy.83
Although the guarantee clause itself has been forgotten by constitutional history, the model of federalism symbolized by its
terms retainsits *1024 force. There was no occasion for use of the clause before the Civil War.84 After emancipation, federal
power was set in motion against the single glaring challenge to representative democracy in United States— exclusion of the
Negro from the Southern political process. In allowing protection for the Southern Negro, the post-war Court followed the
Madisonian model. The Court’s failure specifically to invoke the guarantee clause proved not that the clause was irrelevant,
but that it was unnecessary. The Reconstruction amendments, especially the fifteenth, provided an alternative means of
securing the guarantee.85
III. THE CONTEMPORARY RELEVANCE OF THE FEDERALIST MODEL
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
After 1877, a public tired of Reconstruction allowed violence and terror to disfranchise the Southern Negro. 86 For a century,
legal and academic authorities, like nearly everyone else, overlooked the exclusionary character of Southern politics. Basic
themes emphasized by The Federalist were forgotten—that nullification of federal law and abuse of local governmental
power were likely to occur, and that the central government’s power must be sufficiently elastic to prevent such dangers. 87
Attention has returned recently to local political abuses, andCongress *1025 and the federal courts have rediscovered the
Reconstruction amendments.88 But expansion of federal safeguards has not dispelled the notion that federalism erects rigid
barriers to interference with local functions.89
Separate function theorists view the problem of intervention as a conflict between “federalism” and “individual rights.”90
They consider that federalism is designed only to diffuse power by protecting the institutional integrity of the states.
“Individual rights” is pictured as a value analytically separate from federalism. Federalism will be served by federal
abstention; individual rights, by remedial action. In every case, the question is which of these competing considerations
should be favored.91
It is not misleading to describe the interest represented by Clarence Gideon as “individual rights,” and his antagonist as the
state, rather than the instrument of a particular political group. But when Southern Negroes and civil rights workers seek
relief from intimidation, this approach misses the point, for what is really involved is an effort by one faction to exclude
another from the political process. The importanceof *1026 factions, which have no place in separate function theory, was
central to Madison’s model of the federal system. To Madison, federalism was a unified political process, in which the same
factions compete for power in both state and federal governments. By ignoring the relevance of factions to the Southern
problem, separate function theory produces a variety of empirical distortions. Its exponents underestimate the task of
changing unconstitutional state policies,92 and exaggerate the political changes which would accompany any shift of power
to federal institutions.93 They see no real alternatives between state self-improvement and federal occupation; any “incursion
of remote federal authority” will cause “debilitation of local responsibility,” and require indefinite expansion of the federal
role.94
Finally, by identifying political violence as a problem of “individual rights,” separate function theory grossly understates the
problem in the South. As Burke Marshall himself has complained:
*1027 The problem is that legal concepts have developed in terms of individual personal rights, but the rights
of masses, of an entire race, are affected all at once.95
Marshall thought these “legal concepts” prescribed the same remedies for civil rights violations as for personal injuries—
namely, lawsuits, preferably brought by the victim himself. 96 As Assistant Attorney General for Civil Rights, Marshall
regarded more extensive modes of intervention as out-of-bounds for a federal administrator. He needed a different theory,
one which distinguished between deprivations of “individual rights” and of the rights of “an entire race,” and which could
adjust accordingly its prescriptions for federal policy.
This equation of isolated threats to “individual rights” with pervasive subversion of local democracy signifies more than a
factual mistake. It reflects a failure to give an adequate account of the ultimate goals of federalism, and a consequent
confusion about the implications of federalism for policy. By barring federal interference with local functions, separate
function theorists believe they are promoting pluralism. They are correct in claiming pluralism as an objective of federalism.
But, handicapped by a simplistic notion of political power, their analysis produces a mistaken recipe for pluralism. Moreover,
they fail to see that democracy and individual liberty rank with pluralism as values which federal government is designed to
serve.
By pluralism, separate function theorists correctly intend a political process in which power is scattered among all significant
groups, organizations, and institutions.97 But they jump to the false conclusion that promoting pluralism invariably requires
restricting federal power.
Taken seriously, this conclusion would mean that pluralism is perpetuated by the mere existence of two isolated centers of
governmental power. There would be no need for interaction between them. In particular the federal government would have
no claim to virtue as a guardian of pluralism. 98 Its proper role would be confined to functions beyond the capability of the
states. This limited conception of the utility of a central government was explicit in Thomas Jefferson’swritings. *1028 For
him the Union was necessary only to conduct foreign relations. 99
Justice Frankfurter’s generation of theorists has embraced the expansion of federal domestic responsibility for economic
matters.100 They have, moreover, supported an adventuresome role for the Supreme Court under the Reconstruction
amendments.101 But at times they echo Jefferson, characterizing the protection of political values as a minor and aberrational
federal function. They approve of interference with local law enforcement, even in the form of Supreme Court review, only
when state conduct “shocks the conscience.”102
Contradicted by the federal judiciary’s vital contemporary role in safeguarding basic political values, this Jeffersonian notion
survives because of a popular misunderstanding of the relation between power and pluralist politics. Separate function
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
theorists understand, by power, the total physical capability of a government. The most dangerous government is the
“biggest” government, the one with the greatest physical capability, without regard to the objectives for which, the manner in
which, and the people over whom, that capability can be brought to bear. But pluralism is not only concerned with the total
capability of government, but also with a second dimension of power. This is the actual control exercised by government
over the lives of citizens. From the standpoint of Alabama Negroes the local sheriff may be considerably more powerful, in
this sense, than J. Edgar Hoover.
Federalist theory accounted for this second dimension of power. The Federalists’ model emphasized the need for an active
federal role to prevent accumulation and abuse of control over the lives of citizens. They recognized that local factions would
stifle pluralism if federal remedies were not available to stop such factions from gaining and exploiting their monopolies of
political power.103
In the Federalists’ model, the federal government guaranteed local democracy as well as local pluralism. The link between
the two values was representative institutions or “republican government” which the Federalists believed was essential to the
functioning of pluralism.104 *1029 Moreover, popular participation in government was considered an end in itself. Even the
theorists committed to the virtues of local power, Jefferson, Calhoun, and de Tocqueville, emphasized the scope
decentralization allowed for participation by the citizenry in government, 105 unlike current defenders of localism, who
emphasize big government as a danger to pluralism.106
By making no provision for an expanded federal role when local democracy is at stake, separate function theory reveals its
cardinal defect. It produces a model which cannot even identify the objectives which underlie the American choice of a
federal system.
IV. FEDERALISM AND CIVIL RIGHTS: A REFORMULATION
If the separate function model misrepresents the relationship between federalism and federal protection of civil rights, how
should the conventional understanding be refined? The Federalists’ theory offers a basic framework, although modern
experience dictates some modifications.
Federalism aims to promote, not only pluralism, the dispersal of power among distinct units, but also democratic participation
and individual liberty. As forecast by THE FEDERALIST, these values have been threatened less by expanding federal
power than by small, unpoliced concentrations of power. With rare exceptions, federal institutions have been the only means
of checking powerful local factions.107
*1030 While the Federalists recognized that the states were susceptible to factional domination, they did not provide
instruments for curbing the abuses which have become characteristic of local politics. They made explicit provision in the
Constitution only for the destruction of republican government. Perhaps they believed that representative institutions would
ensure by themselves the survival of pluralism. Pluralist politics might guarantee individual liberty, on the theory that no
faction would confer on government tyrannical power which might later be turned against it. 108
In fact, republican government in the states has rarely collapsed, 109 but its persistence has not always guaranteed individual
liberty. When important factions agree, individual liberty has been a frequent victim. 110 Direct intervention has usually been
unnecessary to protect individual and minority rights. Instead, federal judicial review has fulfilled the federal function of
protecting basic political values, where local democracy has failed to do the job itself. 111
*1031 It is fortunate that judicial review has been an effective check on local abuse, for it does not threaten the administrative
bases of state power.112 Strong state institutions have become even more important since the eighteenth century, because of
the unforeseen growth of federal power.113
But the federal government is not the only significant threat to basic political values. Nor is judicial review the only tolerable
form of federal intervention. Where local abuse cannot be locally corrected, federal institutions should take whatever action is
required to restore the regime contemplated by the guarantee clause and the Reconstruction amendments.
By itself this analysis does not refute opponents of “direct intervention” in the South. It does, however, recast the problem.
The question is not whether to favor “individual rights” and forget federalism, but how best to serve federalism. Abstention,
by denying the benefits of pluralist democracy to the Negro population of the South, perpetuates an immediate, though
localized, affront to the objectives of federalism. Intervention, so the argument runs, creates a potential but nationwide
danger—the possibility of inefficiency, abuse and even tyranny, which might result from increased centralization of law
enforcement responsibility.
Although we cannot disregard doubts about the future use of power employed in the South, we should not give them the
credence which the case for abstention requires. Many expressions of such skepticism reflect an indiscriminate aversion to
bigness. Preoccupied with the total capability of the federal government, 114 separate function arguments assume that power is
cumulative. But the political effects of federal action are not so simple. Power to aid the Southern Negro does not necessarily
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augment the government’s power to coerce Midwestern businessmen, Northern welfare recipients, or Vietnamese
Communists.115
Opposition to intervention is also founded on more precise fears. Condemning federal law enforcement, separate function
theorists argue that totalitarianism characteristically begins with centralizationof *1032 police power.116 On this ground they
oppose “starting down the path that would lead inevitably to the creation of a national police force.” 117 They fear measures
which might make local police subservient to the unchecked power of federal law enforcement agencies. 118
But the facts do not substantiate this fear. Many of the most effective forms of intervention involve little danger of a “national
police force,” for example, district court power to stop sham prosecutions against civil rights workers. Moreover, under
present circumstances increased federal scrutiny should be one of the most effective ways of avoiding a cohesive national
police power. Instead of disregarding violations of federal civil rights statutes in the interest of harmony, 119 federal agencies
will have to loosen their ties to local police. If, as is generally supposed, this “countervailing power” mechanism safeguards
pluralism in other sectors,120 it should achieve the same result in law enforcement.
Finally, fears of federal surveillance are unjustified because the federal role need only be temporary. At present, federal
intervention would be justified only to assure protection for those who seek to democratize Southern politics. When local
officials are forced to respect the demands of organized Negro voters, the civil rights unit in the FBI can be disbanded.
Thus, where federal protection is necessary to enfranchise Negroes in the South, intervention is a positive instrument of
federalism. Federalism may require restraint in the processing of individual constitutional claims. It may even require caution
in combating regional resistance to a federal law hostile to all classes of people in the region. 121 But the repression of an
entire class in its first political effortdoes *1033 not justify such caution. Intervention to shelter the growth of pluralist
democracy in the deep South promotes the objectives of federalism. The model contemplated by the framers of the original
Constitution, as refined by the Reconstruction amendments, casts the federal government in precisely this role as guarantor of
the integrity of the local political process.
V. THE SCOPE OF PROTECTION UNDER CURRENT LAW AND POLICY
The dictates of separate function theory affect three areas of controversy: (1) whether federal courts should ignore the rules of
comity and grant relief from official harassment of civil rights activities; (2) whether the Department of Justice should make
active use (a) of civil rights criminal and injunctive sanctions, and (b) of federal enforcement personnel, to control
intimidation and, (3) whether the state action doctrine should continue to restrict the federal government’s constitutional
power to provent private interference with Reconstruction amendment rights. As feared by separate function theorists,
“inescapable pressures” from the “immediacy and urgency of the protest movement” 122 have shaken the hold of their theory
in each of these areas. But the changes of the past two years have not led to a reformulation of federalism theory.
Consequently, courts and administrators have not developed a consistent policy toward civil rights enforcement.
A. Judicial Control of Official Harassment
1. General Harassment and Threatened Prosecutions. Until the spring of 1965, federal judicial restraint sheltered the favored
instrument of political intimidation in the South—the sham criminal prosecution.123 But in Dombrowski v. Pfister a five-man
Supreme Court majority rejected the view that comity forbids all prior restraint of state criminal proceedings. 124
Dombrowski was a civil action brought by a Louisiana civil rightsgroup, *1034 asking injunctive relief from threatened
prosecution under a state anti-subversive statute. Petitioners alleged, first, that the prosecution was a sham intended solely to
discourage civil rights activities and, second, that the statute was unconstitutionally vague. 125 Reversing dismissal of the suit
by a three-judge district court,126 the Supreme Court held that proof that the prosecution was instituted in “bad faith” would
justify injunctive relief.127 Moreover, it held the abstention doctrine inapplicable to all free speech cases involving statutes
void on their face for vagueness.128 All future prosecutions under the vague Louisiana statute were enjoined pending a
limiting construction in a declaratory judgment action in state courts. 129
The Dombrowski majority broke its habit of automatic deference. But neither the vagueness nor the bad faith ground for the
injunction fits the distinctive features of the problem—systematic harassment of a political minority. Vague statutes are not
the sole instrument of harassment. Local officials bent on crushing an opposition do not need vague statutes; investigation,
arrest, brutality, and prosecution under perfectly precise statutes can serve them just as well. 130
Because the Court made vagueness on independent ground for pretrial relief, its opinion authorized district courts to disrupt
state procedures unnecessarily. Injunctions are not justified merely to halt an isolated prosecution under a questionable
statute; Supreme Court review adequately protects the defendant and possible subjects of future regulation. Similarly, if the
abstention doctrine makes any sense at all,131 it should be applied in individual cases free from overtones of harassment. 132
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The Court apparently recognized that, absent the “bad faith” ofLouisiana *1035 officials in Dombrowski, intervention against
unconstitutional statutes may be unwarranted. In Wells v. Reynolds, decided in October, 1965, a 6-3 majority affirmed a
district court’s denial of injunctive relief from prosecution under one of Georgia’s anti-insurrection laws.133 The statute was
substantially identical to one struck down in 1963 by Chief Judge Tuttle of the Fifth Circuit in ordering the pre-trial release of
civil rights workers arrested in Americus, Georgia. 134 Petitioner Wells was likewise a civil rights leader. But his case arose
out of a near-riot in Albany, Georgia, rather than the passive demonstration involved in the Americus controversy.135 His
arrest was not immediately preceded by investigations designed solely to harass, as was the suit in Dombrowski.
By denying relief on a record devoid of evidence of bad faith, the Court shortened the reach of Dombrowski. The Court did
not specify, however, what qualifications it intended to introduce, for neither the majority nor the dissenting justices
delivered opinions.136
*1036 The Court’s confusion was more apparent in the second federal-state injunction situation to come before it after
Dombrowski. The case was Cameron v. Johnson, a prosecution of civil rights demonstrators under Mississippi’s recently
enacted anti-picketing statute.137 Since the statute had been narrowly drawn to test the limits of recent Supreme Court
rulings,138 the case met neither of Dombrowski’s prerequisites for injunction. The statute was not vague on its face.139
Further, since the constitutionality of their conduct was a close question, defendants could not show that the particular
prosecution was instituted in bad faith.140 State officials could not be certain under such circumstances that the defendant’s
conduct was within the scope of the first amendment. Hence, they would not be deliberately violating federal rights by
starting a prosecution which they knew in advance would be reversed.
Apparently recognizing that Dombrowski required dismissal in Cameron, but wishing nevertheless to grant relief, the Court
responded with troubled obscurity. By a 5-4 margin, it reversed the district court’s denial of relief. The majority did not refer
to the lower court’s validation of the statute’s terms, nor to its findings of fact. Instead, in what the dissent termed a “cryptic”
per curiam paragraph, the case was remanded. The district court was directed to reconsider its dismissal “in light of criteria
set forth” in Dombrowski.141 Dissenting,Justices *1037 Black, Harlan, Stewart, and White condemned the majority for
backing away from resolution of issues of “such great importance.”142 The petition for review raised unambiguous questions
of law, and the dissenters saw no excuse for the majority’s unwillingness to resolve them for itself. 143
As the Cameron majority appeared to believe, Dombrowski forbids intervention in some cases where it is needed. Wherever,
as in Cameron, valid statutes are invoked against acts just within constitutional limits, Dombrowski would keep federal
district judges from granting a pretrial hearing. It would bar intervention even in areas where harassment is rampant and state
court delay is predictable. But in such cases eventual reversal by the Supreme Court is an illusory remedy for political
minorities. Three years of criminal litigation will hamstring a registration drive. 144
The Court can master its difficulties if it adheres more closely to the Madisonian logic implicit in Dombrowski’s result.
Statutory vagueness should be eliminated as an independent ground for intervention. The bad faith standard should be
broadened to require consideration of the general pattern of police conduct toward the complaining group. Where there is
substantial evidence of political harassment, federal courts must in effect censor local regulation of the threatened group.
Such circumstances justify displacement of state courts as fact-finders and as immediate checks on law enforcement officials.
Given a history of harassment, federal courts should be empowered to enjoin any prosecution which is neither groundless nor
based on constitutionally protected conduct. To cope with the emergency, the courts must invalidate or restrict the range of
statutes which lend themselves to abuse, like the anti-subversive statute disposed of in Dombrowski, or the anti-insurrection
statute left standing in Wells.145
*1038 2. Pending Prosecutions. Proof of harassment should permit injunction of pending as well as future prosecutions.
Victims of political persecution should not be denied prompt relief, simply because the state files its indictments before their
petition reaches the federal court.146 But Section 2283 of Title 18 of the federal code appears to dictate otherwise. The statute
bans injunctions of state judicial proceedings except when “expressly” permitted by act of Congress. 147 Cameron involved a
state prosecution which had been formally initiated before the defendants sought a federal injunction. 148 Petitioners argued
that 42 U.S.C. § 1983, the section on which their claims of unconstitutional state action was based, constitutes a statutory
exception to § 2283.149
Although one circuit court decision supports this claim, 150 the weight of authority is otherwise.151 Read literally, § 1983 does
not “expressly” except itself from the sweep of § 2283.152 Moreover, the courts may have been inhibited by the breadth of §
1983, which grants relief for any violation “under color of law” for any federal right. Exempting all of § 1983 from the antiinjunction statute would create a massive exception to the principle of comity underlying the statute.
Nevertheless, limitation of § 2283 need not await an act of Congress. The majority in Cameron v. Johnson could have created
a judicialexception *1039 to the reach of § 2283 without attempting to read an “express” authorization into the terms of §
1983. Although § 2283 appears absolute by its terms, it has always been regarded as merely declaratory of judicially
formulated principles of comity.153 Recognizing the section’s basis in comity doctrine, Judge Sobeloff in a recent Fourth
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Circuit case, suggested its provisions were inapplicable under the “special circumstances” created by repression of civil rights
activities in Danville, Virginia.154 These “special circumstances” parallel the bad faith conduct recognized in Dombrowski as
making comity requirements inapplicable.155 Dombrowski should be held to require adoption of Judge Sobeloff’s similarly
inspired exception to § 2283.
Dombrowski should also lead to acceptance of an alternative remedy for sham prosecutions fashioned recently by the Fifth
Circuit. The appellate courts of the deep South have expanded the scope of the civil rights removal statute, 28 U.S.C. §
1443,156 to allow removal of any state prosecution initiated in reprisal for the defendant’s political activities. 157 The
considerations of comity motivating early restrictivedecisions *1040 under the removal statute158 are inappropriate under
conditions of political harassment, as they were in Dombrowski itself.
B. The Department of Justice as Prosecutor and Policeman
In the hands of vigilant lower courts, direct judicial remedies for unconstitutional prosecutions have often halted official
harassment.159 Nevertheless, the courts alone cannot make civil rights activity safe. Judicial orders are effective only when
obeyed; if they are disobeyed, as must be expected where federal law upsets local mores, the federal executive must enforce
them.160 More important, the judiciary cannot act alone against private violence or police brutality.
But like the courts, the Department of Justice has moved in fits and starts toward assumption of its responsibilities in the
South. In general the Department has been more willing to prosecute civil rights offenses than to impose direct prior controls
through injunctions or policing activity. And even consistent prosecution of civil rights crimes has been a recent
development. As late as 1964, in his review for a Columbia University audience of executive civil rights policy, Burke
Marshall did not refer once to the availability of 18 U.S.C. §§ 241 and 242,161 criminal statutes passed by the Radicals in
1870-71.162 Officials justifiedtheir *1041 hands-off policy by stressing local responsibility for law enforcement. 163 They also
spoke of the hostility of Southern juries, and argued that losing cases would breed disrespect for federal law. 164
National outrage over civil rights killings in the summer of 1964 forced the Department to assume some enforcement
responsibility. Since then, most serious racial crimes have been prosecuted.165 To avoid hostile grand juries, U.S. attorneys
have been instructed to proceed by information under § 242, which treats official interference with federal rights as a
misdemeanor.166 John Doar, now Assistant Attorney General for Civil Rights, has lent his ability and prestige to the
prosecution of major cases, personally obtaining the conviction of Klansmen charged with the Alabama slaying of Mrs. Viola
Liuzzo.167
Although the Justice Department has rediscovered the criminal statutes, it still feels bound by Burke Marshall’s maxim,
“[T]here is nothing to do unless something happens.”168 This commandment underlies the Department’s reluctance to request
injunctions against local enforcement officials.169 Only widespread publicity, as in Selmaand *1042 Bogalusa, has prompted
the Department to seek broad prohibitions of local police abuses. 170
Even less has the Justice Department been willing to calm volatile Southern communities by sending federal enforcement
personnel. In the early nineteen sixties, Southern civil rights organizations first broadcast their demand for a “federal
presence.”171 The Civil Rights Commission continues to press the Department for direct federal protection.172 To be sure,
some significant changes have occurred. The Federal Bureau of Investigation now has an office in Jackson, eliminating
Mississippi’s status as the only state without an FBI office.173 The Bureau has begun to purge its Southern ranks of racially
prejudiced agents.174 It investigates terrorist groups with the thoroughness formerly reserved for organized crime and
subversive activities. But, though a federal observer was in the car driven by the killer of Mrs. Liuzzo, neither he nor any
other FBI agent was—or is— authorized to take preventive action or to make an on-the-spot arrest.175
Defending this purely reactive posture, Justice Department officials reject the principle that Justice Bradley considered
“incontrovertible” during Reconstruction—that the federal government may use all means at its command to secure
enjoyment of federal civil rights in the South. 176 To justify their belief that federal peace-keeping activities threaten
federalism, officials have termed such intervention unauthorized by Constitution or statute177—in the teeth of plainly
contrary laws and cases.178 They equate the demand for a federal presence withrequests *1043 for a national police force,179
although proposals for the active use of federal enforcement personnel are intended to apply only to selected areas. 180 While
conspicuous investigative and policing activity would not stop every maniac from firing into sharecroppers’ cabins, at least
some would think twice. Organized, officially sponsored terror would surely be reduced. As for the Department’s argument
that intervention would undercut local efforts to preserve order,181 the contrary is more likely—a federal presence would
strengthen the hand of the local forces of law and order. 182
C. Federalism, Federal Supremacy, and the State Action Doctrine
Separate function theory has influenced federal policy in the South mainly through discretionary rules and policies. At one
significant point, however, the notion that federalism requires state administrative control of tort and criminal matters has
entered constitutional doctrine. This is the state action requirement, which until March, 1966, defined the reach of federal
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power to enforce the Reconstruction amendments. The state action doctrine denied Congress power to legislate against
interference by private persons with the exercise or enjoyment of Reconstruction amendment rights. 183 Section 241,
enactedas *1044 part of the Ku Klux Act of 1870,184 exceeds the constitutional limits set by the state action doctrine since it
proscribes all conspiracies, private as well as public, to impair the exercise of federal rights. 185 By initiating prosecution of
private racial offenses under § 241,186 the Justice Department gave the Supreme Court occasion to re-examine its
commitment to “state action.” Six justices took the opportunity in United States v. Guest,187 a prosecution of Georgia
Klansmen, to affirm congressional power over private conduct under the amendments. 188
The Court’s decision must have surprised many commentators, for recent wrangling over the scope of the doctrine has
seldom hinted any doubt that state action was an immutable boundary of power under the amendments. 189 The state action
debate has never acknowledged its theoretical source: a clash between the logic of federal legal supremacy and separate
function notions about federalism.
Broadly speaking, four approaches have been taken. The “pure” separate function position was adopted by Justices
Frankfurter and Jackson, in portions of their opinions in Screws v. United States190 and Monroe v. Pape.191 They argued that
state action included only action sanctioned by the authoritative institutions of state government. Civil rights offenses which
were illegal under state law could not be made federal crimes.
*1045 Although the Supreme Court rejected this restrictive conception of state action, it held fast to the premise that state
action defined the limits of power to enforce the amendments. 192 The Supreme Court adopted a second understanding of state
action, which includes any individual official’s conduct, whether or not his acts were prohibited by state law. 193 The Court’s
reluctance to extend federal power to purely private conduct reflected acquiescence in the Frankfurter-Jackson notion that
federalism assigned social control to the states.194
A few commentators offered a third approach, designed to reconcile the Southern Negro’s need for federal protection from
private violence with the assumed commands of federalism. This was the “breakdown” theory of state action. 195 Federal laws
against private action would be allowed only where state protection of civil rights was inadequate or deliberately withheld.
During Reconstruction the Supreme Court in effect adopted the breakdown approach. Federal jurisdiction over private
conduct was confined to the South— where breakdown conditions had occurred—by a more liberal construction of the
fifteenth amendment than the fourteenth.196 The breakdown theory thus satisfies the minimum requirements of Madisonian
federalism; it permits federal action wherever state law cannot prevent political violence.197
But even the breakdown analysis of state action does not go as far as the terms of § 241. The Radical Republicans who
enacted this across-the-board proscription of private interference with federal rights accepted the fourth, and most liberal,
construction of congressional enforcement power. They relied on Justice Story’s implied power doctrine, a pure federal
supremacy approach.198 To ensure the supremacy of federal law, Justice Story held in Prigg v. Pennsylvania, Congress has
implied power to secure the enjoyment of any constitutional rights by proscribing all forms of interference. 199 It could be
argued that Justice Story’s rule should not apply to Reconstruction amendmentrights, *1046 because the amendments contain
a limited grant of enforcement power.200 The Radicals, however, interpreted the enforcement clause as coinciding with,
rather than limiting, the implied power doctrine previously applied to other constitutional rights. 201
In United States v. Guest,202 the Supreme Court seems to have accepted the Radicals’ construction of the enforcement
sections of the fourteenth and fifteenth amendments. In Guest, the defendants, Georgia Ku Klux Klansmen, were alleged to
have conspired to intimidate Negroes in the exercise of a number of specified federal rights, among which was the right to
equal protection created by the fourteenth amendment.203
*1047 Mr. Justice Stewart’s opinion for the Court avoided re-examination of the state action doctrine; joined by Justices
Harlan and White, he construed the pleadings to include an allegation that state action was involved in the defendant’s
conspiracy.204 However, Mr. Justice Brennan, joined by Mr. Chief Justice Warren and Mr. Justice Douglas, felt compelled to
face the constitutional question. They accepted the Radicals’ theory of federal power to enforce the amendments:
Although the Fourteenth Amendment itself, according to established doctrine, “speaks to the State or to those acting under
the color of its authority,” legislation protecting rights created by the Amendment, such as the right to equal utilization of
state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes
Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that
Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the
exercise of such a right is necessary to its full protection. 205
Justices Clark, Fortas, and Black accepted Justice Stewart’s construction of the indictment, but in dicta, stated their belief that
“the specific language of § 5, the enforcement section of the amendment empowers the Congress to enact laws punishing all
conspiracies—with or without state action—that interfere with Fourteenth Amendment rights.”206 Although their summary
statement might merely indicate acceptance of the breakdown theory, it seems more likely that Clark, Fortas, and Black share
Mr. Justice Brennan’s willingness to resurrect the Radicals’ interpretation.207
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The Court might have met the federal government’s responsibility to protect local minorities by simply adopting the
breakdown approach.208 Nevertheless, it was justified in approving unlimited federal jurisdiction over private interference
with the amendments.209 It istrue *1048 that, outside the South, state tort and criminal law generally give adequate protection
against violence aimed at impairing the exercise of Reconstruction amendment rights. 210 But Congress might reasonably
decide that federal rights could not be safely secured unless the Justice Department held continuing authority to prosecute
violent interference, wherever and whenever such intimidation appeared. This judgment would rest on Congress’
fundamental responsibility to ensure the supremacy of federal law. 211 Only the most compelling reasons could justify judicial
veto of Congress’s decision to overlap state law enforcement responsibility.
At present, compelling reasons for such restrictions on congressional power do not exist. The separate function fear of federal
executive supervision of local police officials under civil rights statutes, however valid, is irrelevant to the question of
extending enforcement jurisdiction to private civil rights offenses. 212 More important, it is too late to throw up one’s hands at
the suggestion of a federal criminal law which overlaps state legislation. The FBI and United States attorneys are now deeply
involved in the war against bank robberies,213 pimping,214 obscenity,215 narcotics,216 and gambling.217 Authority to
prosecute private civil rights crimes, involves only a minimal erosion of the states’ remaining exclusive domain. 218
Moreover, modern expansion of thedue *1049 process clause219 has undermined the doctrinal foundation for the post-Civil
War Court’s original decision to limit fourteenth amendment enforcement power to “state action.” Congress had originally
intended the privileges and immunities clause, not the due process clause, to be the vehicle through which fundamental rights
would be protected from state as well as federal deprivation. 220 In emasculating the privileges and immunities clause, 221 the
Court aimed to prevent federal interference with state law enforcement institutions, not only by federal criminal law, but by
Supreme Court review as well. The Court wished to avoid a construction which would make it:
a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to
nullify such as it did not approve as consistent with those rights .... 222
Not sharing this aversion to Supreme Court review under the amendments, the modern Supreme Court has used the bizarre
doctrine of “substantive due process”223 to sidestep the nineteenth century Court’s construction of the privileges and
immunities clause.224 Since the Court has granted citizens a broad array of fourteenth amendment rights, it should be
prepared to secure their enjoyment by permitting Congress and the executive to prevent all forms of interference. The state
action doctrine, which drew its strength from obsolete qualms about federal law enforcement responsibility, should no longer
override the claim of federal supremacy.
*1050 Postscript: The Removal Cases—An Unexpected Regression
When it was decided in April 1965, Dombrowski v. Pfister seemed to herald a radical expansion of federal protection for
embattled local minorities.225 But barely one year later the Supreme Court reneged. On June 20, 1966, as this Comment was
going to press, a 5-4 majority reversed the decision of the Fifth Circuit Court of Appeals in Peacock v. City of Greenwood.226
The Fifth Circuit had reinterpreted the civil rights removal statute,227 to permit removal to a federal district court of any state
prosecution initiated solely to obstruct civil rights activity. 228 Reversing, the Supreme Court reaffirmed nineteenth century
cases which confined removal to state trials prejudiced by a statute discriminatory on its face. 229 Removal is thus unavailable
to the civil rights worker harassed by charges of unlawful assembly, sedition, or lascivious carriage—characteristic guises of
sham prosecutions in the South.230
The Court, following the separate function faith, counts on an independent state judiciary to teach itself respect for federal
rights and then call a halt to police abuses.231 But this independent judiciaryexists *1051 in few states, least of all in the
South. State judges are generally the liegemen of local political establishments. When a dominant faction feels threatened
enough to turn police harassment on its foes, most state judges will find political pressure more compelling than federal
supremacy.232
The Court’s antipathy to the Fifth Circuit’s rule evidently stemmed from fear of “wholesale dislocation” of state judicial
responsibility.233 But the rule—limited to harassment prosecutions—hardly affects an essential part of state court
business.234 It permits direct intervention only where the normal remedy of Supreme Court review is inadequate. 235 More
important, judicial remedies like removal do not touch on the substantial concerns of opponents of direct intervention. They
put us no closer to the day when the cop on the beat takes his orders from J. Edgar Hoover; they can not destroy the
administrative bases of state political power.236
Affirming the Fifth Circuit would not have shifted power to intruders from Washington. On the contrary, federal district and
appeals judges are drawn from local leadership groups; their careers, while generally more distinguished, have not diverged
widely from those of state judges and public officials. 237 But life tenure allows federaljudges *1052 to bring a national
perspective to the problems of their jurisdiction. They are, in brief, uniquely fitted to integrate federal policy with regional
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mores, to soften resistance to the demands of federal law. 238 With its renewed ban on direct intervention, the Court has
senselessly disarmed the Southern federal bench.
Footnotes
1
Popular and official accounts of racial intimidation abound. See, e.g., UNITED STATES COMM’N ON CIVIL RIGHTS,
JUSTICE (1961); LAW ENFORCEMENT (1965); Hearings Before the United States Comm’n on Civil Rights (Jackson, Miss.)
(1965) (hereinafter cited as JUSTICE, LAW ENFORCEMENT, and Jackson Hearings); THE SOUTHERN REGIONAL
COUNCIL, INTIMIDATION, REPRISAL, AND VIOLENCE (1959), LAW ENFORCEMENT IN MISSISSIPPI (1965). See
also the several essays collected in SOUTHERN JUSTICE (Friedman ed. 1965) (hereinafter cited as SOUTHERN JUSTICE),
especially those by Teachout, Burns, and Lusky. For representative examples which have come before the courts, see
Dombrowski v. Pfister, 380 U.S. 479 (1965); Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964); United States v. Wood,
295 F.2d 772 (5th Cir. 1962) (all examples of official intimidation); United States v. Guest, 86 Sup. Ct. 1170 (1966) (private
organized violence).
Terrorism was the basic instrument of the South’s previously successful effort to drive the Negro from politics. See Swinney,
Enforcing the Fifteenth Amendment 1870-77, 28 J. SO. HIST. 202 (1962); V. L. WHARTON, THE NEGRO IN MISSISSIPPI
1865-90, 167-99 (1947).
Since Reconstruction, recurrent violence has operated to reinforce the Negro’s sense of impotence. See MYRDAL, AN
AMERICAN DILEMMA (1944); DOLLARD, CASTE AND CLASS IN A SOUTHERN TOWN 314-88 (1937).
2
See generally Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas
Corpus Jurisdiction to Abort State Court Trial, 113 U. PA. L. REV. 793 (1965); Lusky, Racial Discrimination and the Federal
Law: a Problem in Nullification, 63 COLUM. L. REV. 1163 (1963).
3
See generally Burns, The Federal Government and Civil Rights, in SOUTHERN JUSTICE 228.
4
The basic texts are: Screws v. United States, 325 U.S. 91, 138-61 (1945) (Frankfurter, Jackson, Roberts, JJ., dissenting); Monroe
v. Pape, 365 U.S. 167, 202-59 (1961) (Frank-furter, J., dissenting); Harrison v. NAACP, 360 U.S. 167 (1959) (Harlan, J.);
MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964) (hereinafter cited as FEDERALISM AND CIVIL RIGHTS).
5
FEDERALISM AND CIVIL RIGHTS 50; Jackson, Message on the Launching of the Bill of Rights Review, 1 BILL OF RIGHTS
REVIEW 34, 35-36 (1940).
6
Burke Marshall has provided the most elaborate development of the doctrinal implications of the notion that “civil rights issues
cut into the fabric of federalism,” that they “cut most deeply where police power is involved.” FEDERALISM AND CIVIL
RIGHTS 81. Marshall makes explicit the willingness of proponents of restraint to subordinate the principle of federal legal
supremacy, and the assumption that federalism compels such subordination. Youthful civil rights workers, he has said,
cannot understand federal inaction in the face of what they consider, often quite correctly, as official wholesale local interference
with the exercise of federal constitutional rights. Apparently their schools and universities have not taught them much about the
working of the federal system .... What is wrong with [their] analysis? ... The question embraces all the deepest complexities of
the federal system.
Id. at 49-50.
The assumption that federal action on behalf of civil rights conflicts with the requirements of federalism has received more frantic
expression at the hands of Professor Kurland of Chicago, who mourns “the effective subordination, if not the destruction, of the
federal system.” Kurland, The Supreme Court, 1963 Term, Forward: Equal in Origin and Equal in Title to the Legislative and
Executive Branches of the Government, 78 HARV. L. REV. 143, 144 (1964). He sees this catastrophe as a logical corollary of the
desegregation cases, the sit-in cases, and principally the reapportionment cases. Id. at 162-63.
But this notion that civil rights and federalism involve competing values enjoys favor not only with advocates of restraint. It is
reflected in the cliche with which analysis often begins in civil rights cases—that the benefits of federal action must be weighed
against danger to the “delicate balance” of federalism. See, e.g., Note, Federal Injunctions and State Enforcement of Invalid
Criminal Statutes, 65 COLUM. L. REV. 647 (1965); Note, The Proper Scope of the Civil Rights Acts, 66 HARV. L. REV. 1285,
1287 (1953). This notion derives from the theory best articulated by Frankfurter and Jackson, that the purpose of federalism is to
preserve a balance of political power between the federal and state governments. See notes 47-49 infra and accompanying text.
Indeed, even activists accept the formula that demands for intervention present a conflict between “federalism” and “individual
rights.” They argue merely that the latter value should be preferred to the former. See Sobeloff, Federalism and Civil Liberties:
Can We Have Both? 1965 WASH. U.L.Q. 296, 297; Van Alstyne, Book Review, 10 VILL. L. REV. 203, 208 (1964);
Wasserstrom, Book Review, 33 U. CHI. L. REV. 406, 413 (1966). Wasserstrom is the first writer to suggest that federalism in
contemporary jargon may represent only an “ideology,” rather than the only acceptable definition of the term. Id. at 410.
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7
Political scientists are accustomed to applying the phrase “division of powers” to intergovernmental relations in a federal system.
See, e.g., Huntington, The Founding Fathers and the Division of Powers, in AREA AND POWER 169 (Maass ed. 1959).
However, in the view articulated by Frankfurter, Jackson, Harlan, and Burke Marshall, it is separation, rather than division which
is stressed. Their point is, not that judicial or legislative power, for example, is “divided” between state and nation, but that federal
powers (powers being equivalent to “functions”) are distinct and separate from state powers (functions). Justice Frankfurter
matched his insistence on separation of state from federal functions with an analogous and similarly inspired aversion to sharing
of functions among the three branches of the federal government. In both inter- and intra-governmental relations, separation of
powers, rather than checks and balances, was the guiding principle. See THOMAS, FELIX FRANKFURTER—SCHOLAR ON
THE BENCHHH, Part Five passim, especially 265-66, 267, 284-85, 290-91, 315 (1960); Nathanson, Separation of Powers: The
Justice Revisits His Own Casebook, in FELIX FRANKFURTER: THE JUDGE 1, 28-29 (Mendelsohn ed. 1964). Compare
BURNS & PELTASON, GOVERNMENT BY THE PEOPLE: THE DYNAMICS OF AMERICAN NATIONAL
GOVERNMENT 64-66 (3d ed. 1957).
8
See the opinions of Justice Frankfurter in Monroe v. Pape, 365 U.S. 167, 222, 242 (dissenting); Knapp v. Schweitzer, 357 U.S.
371, 375 (1958); Screws v. United States, 325 U.S. 91, 138-39, 140-46, 148-49, 160-61 (1945) (dissenting with Justices Jackson
and Roberts); Malinski v. New York, 324 U.S. 401, 412-18 (1945). See also Senator Robert F. Kennedy’s introduction to
FEDERALISM AND CIVIL RIGHTS xiii-ix (1964).
9
The term is the author’s, although similar terminology is used in FEDERALISM AND CIVIL RIGHTS at 44, 75. See also
Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943). Cf. Rochin v. California, 342 U.S. 165, 168-69 (1952); Malinski v. New
York, 324 U.S. 401, 412 (1945) (Frankfurter, J., concurring).
10
To conform to this separate function conception of state autonomy, statutory civil rights remedies have been construed to allow
only post-conviction relief. See notes 23-28 infra.
11
“Under color of law” appears in those statutes which prohibit interference by local officials with federal rights: 18 U.S.C. § 242
(1964); 17 Stat. 13 (1871), 42 U.S.C. § 1983 (1964); 16 Stat. 140 (1870), as amended, 42 U.S.C. § 1971(a)(b) (1964). The most
frequently used of these statutes are 42 U.S.C. § 1983 and its companion 18 U.S.C. § 242, which provide:
§ 1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes
to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
§ 242. Deprivation of rights under color of law.
Whoever, under color of law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or
District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United
States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or
race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year,
or both.
12
United States v. Classic, 313 U.S. 299, 326 (1941); Ex Parte Virginia, 100 U.S. 339, 346 (1880). Classic defined the phrase as
follows: “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law, is action taken ‘under color of state law.” 313 U.S. at 326.
13
Monroe v. Pape, 365 U.S. 167, 224-46 (1961) (Frankfurter, J., dissenting); Screws v. United States, 325 U.S. 91, 148 (1945)
(Roberts, Frankfurter, and Jackson, JJ., dissenting).
14
365 U.S. at 241; 325 U.S. at 148-49.
15
325 U.S. at 140-42. See Collins v. Hardyman, 341 U.S. 651, 657 (1951); United States v. Williams, 341 U.S. 70, 74 (1951). In
Collins, Justice Jackson indicated his acquaintance with one of the major Reconstruction histories, which like virtually all
treatments of the period before the 1950’s, was violently hostile to the Radicals. 341 U.S. at 657 n.8. See STAMPP, THE ERA
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OF RECONSTRUCTION 13 (1965).
16
325 U.S. at 147-48; 365 U.S. at 237-38. In Screws, other members of the Court noted the constitutional overtones of Justice
Frankfurter’s rhetoric:
Lying beneath all the surface arguments is a deeper implication, which comprehends them. It goes to federal power. It is that
Congress could not in so many words denounce as a federal crime the intentional and wrongful taking of an individual’s life or
liberty by a state official acting in abuse of his official function and applying to the deed all the power of his office. This is the
ultimate purport of the notions that state action is not involved and that the crime is against the state alone, not the nation. 325
U.S. at 133.
17
365 U.S. at 237-38.
18
See, e.g., Terry v. Adams, 345 U.S. 461 (1953); Marsh v. Alabama, 326 U.S. 501 (1946).
19
365 U.S. at 222. (Emphasis added.)
20
In Monroe and Screws, the Court extended 42 U.S.C. § 1983 and 18 U.S.C. § 242 to all official interference. In Williams v.
United States, 341 U.S. 70 (1941), an evenly divided Court affirmed the Fifth Circuit’s holding that 18 U.S.C. § 241 (1964), was
not a supplementary remedy for official interference with fourteenth and fifteenth amendment rights. In Collins v. Hardyman, 341
U.S. 651 (1951), the Court followed Justice Jackson’s refusal to allow 42 U.S.C. § 1985(3), to cover private interference with
federal rights not derived from the Reconstruction amendments. For a recent critique of Collins, see Note, 74 YALE L.J. 1462
(1965). The Court’s willingness to go along with Justice Jackson in Collins appears to have stemmed from an inarticulate and
misplaced obsession with the state action requirement. Cf. 341 U.S. at 663-64 (Burton, J., dissenting).
21
The Justice Department’s effort in the 1940’s to crack down on Southern racial violence contrasts sharply with the laissez-faire
policy of the Eisenhower and Kennedy years. See Clark, A Federal Prosecutor Looks at the Civil Rights Statutes, 47 COLUM. L.
REV. 175 (1947); CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD (1947); Chafee,
Safeguarding Fundamental Human Rights: The Tasks of States and Nation, 27 GEO. WASH. L. REV. 519, 526 (1959). Compare
Van Alstyne, supra note 5, at 207; Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 YALE L.J. 1297 (1965);
Shapiro, Limitations in Prosecuting Civil Rights Violations, 46 CORNELL L.Q. 532, 546 (1961).
22
See LAW ENFORCEMENT 142-44; SOUTHERN REGIONAL COUNCIL, LAW ENFORCEMENT IN MISSISSIPPI 22-25,
33-35 (1965); Burns, The Federal Government and Civil Rights, in SOUTHERN JUSTICE 228, 235 (1965). For an expression of
the Justice Department’s ideology of restraint, see generally FEDERALISM AND CIVIL RIGHTS, especially viii-ix, 49-50, 7881.
23
Railroad Comm’n of Texas v. Pullman, 312 U.S. 496 (1941).
24
312 U.S. at 499. Other factors reinforce the “forecast, rather than a determination” theory of abstention. Note, Abstention: an
Exercise in Federalism, 108 U. PA. L. REV. 226, 228-29 (1959); Note, Abstention and Certification in Diversity Suits:
“Perfection of Means and Confusion of Goals,” 73 YALE L.J. 850, 850-51 (1964).
25
The ban on injunction of threatened proceedings is of purely judicial origin. Its most significant contemporary restatement is
Douglas v. City of Jeannette, 319 U.S. 157, 163-64 (1943). See HART & WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 862-64 (1953).
26
“Pending” proceedings, defined as proceedings in which state indictments have already been filed, are protected from federal
injunction by statute. 28 U.S.C. § 2283 (1964). For the history of the anti-injunction statute and of the various liberties taken by
the courts in its construction, see HART & WECHSLER, op. cit. supra note 25, at 847-48, 1075-78; Warren, Federal and State
Court Interference, 43 HARV. L. REV. 345, 349, 367-78 (1930).
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27
The Reconstruction addition to federal habeas corpus remedies is now 14 Stat. 385 (1867), 28 U.S.C. § 2241(c)(3) (1964). The
exhaustion doctrine was introduced in Ex Parte Royall, 117 U.S. 241 (1886). Like the rule against injunction of state proceedings,
this judge-made doctrine of comity is now codified. 28 U.S.C. § 2254 (1964). See Darr v. Bur-ford, 393 U.S. 200, 204-05 (1950).
Present exhaustion doctrine permits liberal use of habeas corpus, after state prisoners have exhausted state procedure for judicial
review and sought federal review in the Supreme Court; exhaustion of state habeas corpus and other postconviction remedies is
not required. See Brown v. Allen, 344 U.S. 443, 447 (1953), a decision in which Justice Frankfurter vigorously concurred. See id.
at 510. But exhaustion prevents invocation of federal habeas corpus before the state appellate process has had its say, and, a
fortiori, before the trial itself. For application of the doctrine in civil rights cases, see Hillegas v. Sams, 349 F.2d 859 (5th Cir.
1965), cert. denied, 80 Sup. Ct. 927 (1966); Application of Wyckoff, 196 F. Supp. 515 (S.D. Miss. 1961). For exhaustive
analysis, see Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas
Corpus Jurisdiction to Abort State Court Trial, 113 U. PA. L. REV. 793, 882-908 (1965).
28
Kentucky v. Powers, 201 U.S. 1 (1906); Virginia v. Rives, 100 U.S. 313 (1880). See Amsterdam, supra note 27, at 805-18, 84282. For recent reaffirmations of Rives and Powers in the context of civil rights controversies, see Baines v. City of Danville, 337
F.2d 579 (4th Cir. 1964), reaffirmed en banc, 34 U.S.L. WEEK 2438 (Jan. 21, 1966).
29
Cleary v. Bolger, 371 U.S. 392, 397 (1963); Wilson v. Schnettler, 365 U.S. 381, 383-86 (1961); Stefanelli v. Minard, 342 U.S.
117, 120, 123-24 (1951); New York v. Galamison, 342 F.2d 255, 270 (2d Cir. 1965) (Friendly, J.), cert. denied, 85 Sup. Ct. 1342
(1966). Occasionally, discussions of comity are adorned by elaborate bows to state “sovereignty.” See Dombrowski v. Pfister, 227
F. Supp. 556, 561 (E.D. La. 1964), rev’d, 380 U.S. 479 (1965); Warren, supra note 26, at 374-75.
30
Railroad Comm’n of Texas v. Pullman, 312 U.S. 496, 499 (1941); Note, 108 U. PA. L. REV. 226, 227-28 (1959). Critics of
abstention have suggested that the doctrine in fact frustrates efficient administration. See the concurring opinion of Justice
Douglas in England v. Louisiana Board of Examiners, 375 U.S. 411, 423-37 (1964). See also Wright, The Abstention Doctrine
Reconsidered, 37 TEXAS L. REV. 815, 817-18 (1959).
31
See sources cited supra note 29.
32
Harrison v. NAACP, 360 U.S. 167, 178 (1959). Justice Frankfurter notes the blood relationship between his construction of
“under color of law” in federal civil rights statutes and the separate function analysis of comity in Screws v. United States, 325
U.S. 91, 146 (1945) (dissenting opinion). See also Justice Frankfurter’s emphasis on local administration of criminal justice in
Stefanelli v. Minard, 342 U.S. 117, 121-22 (1951).
33
FEDERALISM AND CIVIL RIGHTS 55.
34
Lusky, Racial Discrimination and the Federal Law: a Problem in Nullification, 63 COLUM. L. REV. 1163, 1167-77 (1963);
SOUTHERN JUSTICE 255; Amsterdam, supra note 27, at 794-99.
35
See sources cited in notes 1, 21, and 22 supra.
36
Harrison v. NAACP, 360 U.S. 167, 184 (1959) (Douglas, J., dissenting); Jordan v. Hutcheson, 323 F.2d 597, 599-602 (4th Cir.
1963); NAACP v. Patty, 159 F. Supp. 503, 521-23 (E.D. Va. 1958); Dombrowski v. Pfister, 227 F. Supp. 556, 569-70 (E.D. La.
1964) (Wisdom, J., dissenting), rev’d, 380 U.S. 479 (1965).
37
360 U.S. at 184.
38
See notes 1, 21, 22 supra. In his Harrison dissent, Mr. Justice Douglas doubts that state courts will be reliable under conditions of
local antagonism to federal law or a political minority. 360 U.S. at 180-84.
39
Harrison v. NAACP, supra note 36.
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40
See Note, 108 U. PA. L. REV. 226, 235-36 n.74 (1959).
41
FEDERALISM AND CIVIL RIGHTS 49-55.
42
Id. at 58.
43
See Mr. Justice Douglas’ Harrison dissent, 360 U.S. at 179-84, and Judge Wisdom’s dissent in Dombrowski v. Pfister, 227 F.
Supp. at 570-71.
44
Separate function theorists have seemed not to recognize conflict between deference to state institutions and federal legal
supremacy, although Burke Marshall approaches explicit recognition of the problem. See FEDERALISM AND CIVIL RIGHTS
4, 7, 8, 44, 59-60. Justice Frankfurter came closest to admitting the necessity, under his conception of comity, of subordinating
federal supremacy when the two principles conflict in Sweeney v. Woodall, 344 U.S. 86, 91 (1952). See Comment, Extradition
Habeas Corpus, 74 YALE L.J. 78, 115 (1964). Failure to recognize particular instances of conflict between comity and federal
supremacy stems from a general disregard for the possibility that state defiance of federal law can occur in a federal system. Most
of what passes for contemporary federalism theory simply bypasses the problem of nullification. See the several essays collected
in FEDERALISM: MATURE AND EMERGENT (MacMahon ed. 1955) discussed in note 87 infra. Justice Frankfurter in
particular was plagued by a vocabulary resistant to analysis of federal-state conflict. See Henkin, Voice of a Modern Federalism,
in FELIX FRANKFURTER: THE JUDGE 68, 85-86 (Mendelsohn ed. 1964). Thus blinded to the possibility of federal-state
conflict, Frankfurter appeared to regard comity as a device for harmonizing institutional relationships between state and nation,
regardless of whether state institutions obeyed their federal obligations:
Self limitation is not a matter of technical nicety, nor judicial timidity. It reflects the recognition that to no small degree the
effectiveness of the legal order depends upon the infrequency with which it solves its problems by resorting to determinations of
ultimate power. Monroe v. Pape, 365 U.S. 167, 241 (1961).
45
Cooper v. Aaron, 358 U.S. 1, 22-26 (1958) (Frankfurter, J., concurring).
46
Lusky, supra note 34 at 1169, 1181-83.
47
Screws v. United States, 325 U.S. 91, 142 (1945) (dissenting opinion); cf. FEDERALISM AND CIVIL RIGHTS 50.
48
JACKSON, THE SUPREME COURT IN THE AMERICAN SYSTEM OF GOVERNMENT 70-71 (1955).
49
Words to this effect often appeared in the opinions of Justice Frankfurter. See, e.g., his dissents in Screws, 325 U.S. at 140, and
Monroe, 365 U.S. at 237. But they also slip, unexamined, into the rhetoric of such advocates of active federal protection of federal
rights as Mr. Justice Douglas. See Screws v. United States, 325 U.S. at 109.
50
The Fugitive Slave cases were the only instances of judicial review of congressional or executive action to deal with problems of
nullification. See Prigg v. Pennsylvania, 41 U.S. (17 Pet.) 539, 614-15, 617-18 (1842), discussed in notes 65-66 infra and
accompanying text. In all cases where the Supreme Court has had occasion to consider the validity of disobedience to federal
court orders, it has responded with resolute affirmation of federal supremacy. See United States v. Peters, 9 U.S. (5 Cranch) 115
(1809); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cooper v. Aaron, 358 U.S. 1 (1958). Where, however, local
antagonism to federal law is resolute, executive action has been necessary to deny de facto success to nullification. Where such
action was forthcoming, federal law was observed, as in the Whiskey Rebellion in Pennsylvania and the South Carolina tariff
controversy of 1832. Where enforcement was irresolute, nullification has proved a successful strategy, as with the Fugitive Slave
laws in the pre-Civil War North and the embargo in New England before the War of 1812. For discussion, see 1 WARREN, THE
SUPREME COURT IN UNITED STATES HISTORY 387-89 (1922); 2 Id. at 191, 480; Miller 8c Howell, Interposition,
Nullification, and the Delicate Division of Power in a Federal System, 5 JOURNAL OF PUBLIC LAW 2 (1956).
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51
See R. G. MCCLOSKEY, THE AMERICAN SUPREME COURT 54-65 (1960).
52
Huntington, The Founding Fathers and the Areal Division of Powers, in AREA AND POWER 150, 169-79 (Maass ed. 1959).
53
1 MOGI, THE PROBLEM OF FEDERALISM 82-83 (1931).
54
The most succinct expression of Calhoun’s theory, elaborated in writings and speeches throughout his career, is found in his
DISQUISITION ON GOVERNMENT AND A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE
UNITED STATES in 1 THE WORKS OF JOHN C. CALHOUN (1854). For extensive treatment of Calhoun’s theory, see 2
MOGI, op. cit. supra note 53, at 105-17.
55
CALHOUN, A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES, op. cit. supra
note 54, at 115-149.
56
Id. at 146.
57
Id. at 277-80, 284-302.
58
See note 9 supra and accompanying text; notes 31-32 supra and accompanying text.
59
See notes 43 and 44 supra and accompanying text.
60
In principle, strict obedience to comity and deference to local law enforcement officials shelters local nullification no less
effectively than Calhoun’s proposal for formally ratifying the practice. See notes 34-36 supra and accompanying text. Had federal
judges and executive officials maintained intact their commitment to separate function principles over the past two years,
nullification in the South would remain as successful as it had been from 1877 until 1964. See notes 156-57 and 165-67 infra and
accompanying text.
61
The Federalists’ position was set forth systematically in THE FEDERALIST, especially numbers 9, 10, 15-20, 27, 32, 39, 47-51.
62
Quoted in HUNTINGTON, supra note 7, at 191.
63
THE FEDERALIST NO. 15, at 89-93 (Modern Library ed. 1937) (Hamilton).
64
Lusky, supra note 34, at 1178-79.
65
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615 (1842).
66
The following analysis of the post-Civil War Court’s approach to construction of the Reconstruction amendments is based on the
textual interpretation set forth in Note, The Strange Career of “State Action” under the Fifteenth Amendment, 74 YALE L.J.
1448, 1449-54 (1965). The Court argued that without the state action requirement, the due process clause could be turned into an
excuse for enacting federal murder and theft statutes. See Justice Bradley’s opinion in United States v. Cruikshank, quoted in
Note, 74 YALE L.J. at 1452.
67
The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 71-72, 82 (1873). See Note, 74 YALE L.J. at 1451-52 n.21.
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68
74 YALE L.J. at 1452.
69
See Monroe v. Pape, 365 U.S. 167, 236-37 (1961).
70
See 74 YALE L.J. at 1451-52.
71
Ibid.
72
See generally Swinney, Enforcing the Fifteenth Amendment, 1870-77, 28 J. SO. HIST. 202 (1962); Y. L. WHARTON, THE
NEGRO IN MISSISSIPPI 167-99 (1947).
73
Ex Parte Siebold, 100 U.S. 371, 395 (1880) (Bradley, J.).
74
HARRIS, THE QUEST FOR EQUALITY 56, 81-89 (1960); Gressman, The Unhappy History of Civil Rights Legislation, 50
MICH. L. REV. 1323, 1336-40 (1952); Frank and Munro, The Original Understanding of “Equal Protection of the Laws,” 50
COLUM. L. REV. 131, 167 (1950). A more sophisticated view sees in these cases an attempt to rationalize the law with the
retreat of the Northern populace and the federal political branches from their ephemeral commitment to Reconstruction aims.
WOODWARD, THE BURDEN OF SOUTHERN HISTORY 84 (1960).
75
See THE FEDERALIST NO. 46, at 335-47 (Modern Library ed. 1937) (Madison); Huntington, supra note 7, at 183, 191-93.
76
THE FEDERALIST NO. 51, at 339 (Modern Library ed. 1937) (Madison).
77
See note 63 supra.
78
THE FEDERALIST NO. 10 (Madison).
79
Huntington, supra note 7, at 189-91.
80
U.S. CONST. art. I, § 10; art. IV.
81
See Diamond, The Federalist’s View of Federalism, in INSTITUTE FOR STUDIES IN FEDERALISM, ESSAYS IN
FEDERALISM 52 (1961).
82
U.S. CONST., art. IV, § 4.
83
See THE FEDERALIST NO. 43 (Madison). “Democracy” in the idiom of the Federalists denoted government by the people
themselves, as distinguished from government through popularly elected representatives. THE FEDERALIST NO. 10 (Madison).
84
Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 MINN. L. REV. 513, 531-40
(1962); Lerche, Congressional Interpretations of the Guarantee of a Republican Form of Government during Reconstruction, 15
J. SO. HIST. 192, 192-93 (1949).
85
During the Reconstruction period, Congress continually debated the question of the relation between the Guarantee Clause and
the fourteenth and fifteenth amendments. See Lerche, supra note 84, at 198-210. Until ratification of the fifteenth amendment, the
Guarantee Clause was used to require of newly admitted states that they deny no person access to the franchise on grounds of
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race. See Lerche, The Guarantee of a Republican Form of Government and the Admission of New States, 11 J. POLITICS 578,
589-91 (1949). At the time, the fifteenth amendment alone gave Congress full power to cope with all forms of racial intimidation.
See note 71 supra and accompanying text.
86
H. CUMMINGS AND C. MCFARLAND, FEDERAL JUSTICE 246-49 (1937); WHARTON, op. cit. supra note 72, at 193-94;
WOODWARD, ORIGINS OF THE NEW SOUTH 1877-1913 324-25 (1951); WOODWARD, THE STRANGE CAREER OF
JIM CROW 52-53 (1957).
87
The tendency has been to consider that American federalism is in a “mature” stage in the evolution of a principle of harmony. See
note 44 supra. At Columbia University’s Bicentennial Conference on federalism in 1954, only Arthur Holcombe contributed a
brief essay on the problem of assuring federal supremacy. The Coercion of States in a Federal System, in FEDERALISM:
MATURE AND EMERGENT 137 (MCMAHON ed. 1955). Holcombe treats the problem as academic and hypothetical, of no
practical consequence for the “mature” federalism of the United States. His discussion of the state of progress in inducing
Southern states to enfranchise Negroes in consonance with the fifteenth amendment and to give them treatment consistent with
the fourteenth amendment is complacent and optimistic, recognizing neither injury to the principle of federal supremacy, on the
one hand, nor of need to employ means other than Supreme Court review to assure eventual compliance:
What neither the force of arms nor the more subtle coercion of political leaders at the head of national parties had been able to
accomplish, the federal courts are gradually bringing to pass by the creation of an ever-broadening series of precedents. The
episode records the working of an important principle of political science. When in the fullness of time a political question
becomes justiciable, the problem of coercing states in a federal union loses its importance so far as that particular question is
concerned. Until that time is reached, American experience suggests that what politicians can not readily achieve by the political
techniques of compromise and pacific adjustment had better be left undone unless the tension of unadjusted controversy threatens
to provoke conflicts fatal to the existence of the federal union itself.
Id. at 152.
The similarities between Holcombe’s prescription and Calhoun’s concurrent majority are not unclear. Compare sources cited in
note 44 supra and the essay of John Fischer, Prerequisites of Balance, in FEDERALISM: MATURE AND EMERGENT 58, 6366 (McMahon ed. 1955).
88
Baker v. Carr, 369 U.S. 186 (1962); Terry v. Adams, 345 U.S. 461 (1953). The Court has not limited its concern for the political
freedom of political minorities to review of the electoral process. Perceiving the need for a political minority to organize
effectively, it has used the first and fourteenth amendment to frame a constitutional right of “association.” See Emerson, Freedom
of Association and Freedom of Expression, 74 YALE L.J. 1, 2 (1964). In Baker v. Carr, Justices Harlan and Frankfurter
recognized the coincidence of the Guarantee Clause and the Court’s application of the Equal Protection Clause. 369 U.S. 300-01.
See also Bonfield, Baker v. Carr: New Light on the Constitutional Guarantee of Republican Government, 50 CALIF. L. REV.
245 (1962); Emerson, Malapportionment and Judicial Power, 72 YALE L.J. 64, 71-72 (1962).
89
See notes 9 and 87 supra and accompanying text.
90
FEDERALISM AND CIVIL RIGHTS 81.
91
Cf. Henkin, Voice of a Modern Federalism, in FELIX FRANKFURTER: THE JUDGE 104-07 (Mendelsohn ed. 1964).
92
Because the separate function model does not break the state into factions, it cannot picture maltreatment of a weak faction as the
product of a dominant faction’s monopolization of political power. Perceiving the state as a sort of classless collectivity, rather
than an arena of warring factions, separate function theorists rest their hopes for the vindication of federal rights on unreal
possibilities. They speak as if they expect the state to change its mind without coercion:
We are told that local authorities can not be relied upon for courageous and prompt action, that they often have personal or
political reasons for refusing to prosecute. If it be significantly true that crimes against local law cannot be locally prosecuted, it is
an ominous sign indeed. In any event, the cure is a reinvigoration of State responsibility.
Screws v. United States, 325 U.S. 91, 160 (1945) (Frankfurter, Jackson, and Roberts, JJ., dissenting).
Apparently seeking to spur such a “reinvigoration of State responsibility,” executive officials have preferred traditional judicial
methods, supplemented by imprecation and negotiation with local officials. See FEDERALISM AND CIVIL RIGHTS 75, 78.
93
Equating federal administration with control by “national” interests, state administration with control by “local” interests, separate
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function theorists overlook the impact of local influence on the federal political and legal processes. In fact federal officials —in
Congress, in state FBI and U.S. Attorney’s offices, and on the district bench—are hardly unsympathetic to local mores or
unresponsive to local pressures. See Wechsler, The Political Safeguards of Federalism, 54 COLUM. L. REV. 543 (1954);
PELTASON, FIFTY-EIGHT LONELY MEN 3-30 (1961); Comment, Judicial Performance in the Fifth Circuit, 73 YALE L.J.
90 (1963). Some local influence is compelled by the Constitution, especially by the sixth amendment’s tightly drawn requirement
that federal criminal defendants be tried before a jury drawn from the district in which the crime was committed. U.S. CONST.
amend. VI. If Justice Department officials are to be believed, the power of Southern juries to nullify civil rights statutes deterred
even their invocation for many years. Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 YALE L.J. 1297, 1298-99
(1965); Shapiro, Limitations in Prosecuting Civil Rights Violations, 46 CORNELL L.Q. 532, 546 (1961).
94
Screws v. United States, 325 U.S. 91, 160-61 (1945) (Frankfurter, Jackson, Roberts, JJ., dissenting). See note 117 infra.
95
FEDERALISM AND CIVIL RIGHTS 8.
96
Id. at 50.
97
See DAHL, A PREFACE TO DEMOCRATIC THEORY 137 (1956). For a summary of the characteristics of pluralist thought,
see LINDBLOM, THE INTELLIGENCE OF DEMOCRACY 12-16 (1964).
98
THOMAS, FELIX FRANKFURTER: SCHOLAR ON THE BENCH 266 (1960); Henkin, supra note 91, at 71 (1964).
99
MOGI, THE PROBLEM OF FEDERALISM 82 (1931).
100
Henkin, supra note 91, at 89-92.
101
It is interesting that Justice Frankfurter and the “passivist” faction of the Court acted little less inconsistently with his theoretical
imperatives than did the activists. Compare Culombe v. Connecticut, 367 U.S. 568 (1961), with Malinski v. New York, 324 U.S.
401, 412 (1945). Compare Terry v. Adams, 345 U.S. 461, 470 (1953), with Monroe v. Pape, 365 U.S. 167, 237-38 (1961).
102
Rochin v. California, 342 U.S. 165, 172 (1952).
103
See notes 78-79 supra and accompanying text.
104
Only through the ballot could the many control the few—that is, could factions poor in economic or other forms of power but
great in number protect their interests. Madison, as well as Jefferson, recognized this point. See Huntington, supra note 7, at 18384.
105
CALHOUN, A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES 215 (1852)
(noting that local government reflects local needs better than policies made by federal institutions, an indirect defense of localism
on democratic grounds); Huntington, supra note 7, at 175-76; 1 DE TOCQUEVILLE, DEMOCRACY IN AMERICA 98-100
(Vintage ed. 1960).
106
See note 90 supra.
107
See THE PRESIDENT’S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS 25, 99-100 (1947). For typical
instances of local governmental attacks on political and social minorities, see Hague v. CIO, 307 U.S. 496 (1939); Herndon v.
Lowry, 301 U.S. 242 (1937); Yick Wo v. Hopkins, 118 U.S. 356 (1886). In United States v. Carolene Products Co., 304 U.S. 144,
152 n.4, the Court noted that the “insular” position of local minorities may require special federal judicial concern raising the
question whether:
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
... legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable
legislation, is to be subjected to more exacting judicial scrutiny ... than are most other types of legislation ... prejudice against
discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial
inquiry.
The unique genius of white supremacists in the South has lain, not in their ability to dominate local politics, but in their success in
hamstringing the federal checking mechanism which tempers abuse in other areas. See KEY, SOUTHERN POLITICS 9 (1949):
The critical element in the structure of black-belt power has been the southern Senator and his actual, if not formal, right to veto
proposals of national intervention to protect Negro rights. The black belts have had nothing to fear from state governments on the
race question .... On the fundamental issue, only the Federal Government was to be feared.
For discussion of a proposed local solution to problems of local abuse, see Gellhorn, The Swedish Justiteoombudsman, 75 YALE
L.J. 1 (1965); Gellhorn, The Ombudsman in New Zealand, 53 CALIF. L. REV. 1155 (1965); Gellhorn, Protecting Citizens
against Administrators in Poland, 65 COLUM. L. REV. 1133 (1965); Gellhorn, Finland’s Official Watchman, 114 U. PA. L.
REV. 327 (1966); Gellhorn, Settling Disagreements with Officials in Japan, 79 HARV. L. REV. 685 (1966); Anon., Raise High
the Proof Sheets, Ombudsman! 15 J. PUB. ORDER 471 (1966).
108
In THE FEDERALIST NO. 51, Madison appears to accept the theory that liberty in the states will be substantially guaranteed by
the existence of republican institutions, and that the requirement of federal protection should be limited to the emergency situation
contemplated by the Guarantee Clause. Yet this view contradicts the implications of the principal fear discussed in THE
FEDERALIST NO. 10—the likelihood of single-interest legislative majorities in the states. If the latter fear is a significant
problem, then intermediate federal intervention would seem necessary to correct moderate abuses of power by majority factions.
109
The most prominent and, perhaps, the only example is the deep South between 1877 and 1965. However, malapportionment must
be recognized as a widespread, if more subtle, invasion of the principles of the Guarantee Clause; similarly, state invasions of first
amendment freedoms which have called forth especially vigilant judicial protection challenge the federal responsibility to protect
local democracy. See note 88 supra.
110
See, e.g., Uphaus v. Wyman, 360 U.S. 72 (1959); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943);
Cantwell v. Connecticut, 310 U.S. 296 (1940).
111
Cf. Vose, Interest Groups, Judicial Review, and Local Government, 19 W. Pol. Q. 85 (1966).
112
See notes 48-50 supra and accompanying text.
113
See Morgenthau, Modern Science and Political Power, 64 COLUM. L. REV. 1386, 1391-1409 (1964). Cf. Justice Brandeis’
dissenting opinion in Olmstead v. United States, 277 U.S. 438, 471, 474-75 (1928).
114
See note 102 supra and accompanying text.
115
Unless one assumes that federal protection in turbulent Southern areas implies a large and permanent federal police force, it is
difficult to see what sort of correlative dangers would be created by more effective federal action in the South.
116
JACKSON, THE SUPREME COURT IN THE AMERICAN SYSTEM OF GOVERNMENT 70-71 (1955).
117
Former Attorney General Robert F. Kennedy, introduction to FEDERALISM AND CIVIL RIGHTS ix.
118
JACKSON, op. cit. supra note 116, at 71-72.
119
Shapiro, Limitations in Prosecuting Civil Rights Violations, 46 CORNELL L.Q. 532, 546 (1961).
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
120
GALBRAITH, AMERICAN CAPITALISM: THE CONCEPT OF COUNTERVAILING POWER Chs. IX, X (1952).
121
The Federalists’ emphasis on the need for full federal power to assure the supremacy of federal law rested on their conviction that
intensive federal action would be infrequent, and, since it had to be the product of a joint decision by various competing factions,
was unlikely to be sinister in its objectives. But they were unable to relate systematically their reasoning from the principle of
federal supremacy to the political values which intervention was designed to serve. And, indeed, there is no reason why
intervention should in all cases promote pluralism or democracy or individual liberty. It could, for example, be argued that these
values were, if anything, frustrated by President Jackson’s forceful measures to quash South Carolina’s attempt to nullify the
Tariff of Abominations in 1832. Hence, if federalism is considered a political system designed to further political values, rather
than a legal system designed to assure the supremacy of federal law, the Supremacy Clause cannot be, by itself, a sufficient
answer to separate function opposition to intervention.
122
FEDERALISM AND CIVIL RIGHTS 56, 77.
123
See Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus
Jurisdiction to Abort State Court Trial, 113 U. PA. L. REV. 793, 794-801 (1965).
124
380 U.S. 479 (1965). The decision substantially modified Douglas v. City of Jeannette, 319 U.S. 157 (1943), and appeared to
overrule Harrison v. NAACP, 360 U.S. 167 (1959). See notes 25 and 39 supra and accompanying text. But see notes 133-136
infra and accompanying text.
125
380 U.S. at 482.
126
227 F. Supp. 556 (E.D. La. 1964).
127
380 U.S. at 490.
128
Id. at 489-91.
129
Id. at 491.
130
To cope with such situations, the Court has invented the notion that a statute can be “vague as applied”—i.e., not vague but
applied by state officials to conduct not covered by its terms. See, e.g., Cox v. Louisiana, 379 U.S. 536, 545-51 (1965); Edwards
v. South Carolina, 372 U.S. 229 (1963). The vague as applied doctrine covers cases of sham prosecutions which cannot be
reached by the “no evidence” rule of Thompson v. Louisville, 362 U.S. 199 (1960).
131
See note 29 supra and accompanying text.
132
This rule should apply at least in instances where a single case will produce a definitive state court construction of the statute,
which will either be sufficiently narrow to withstand appeal to the Supreme Court or will, hence, be rejected by the Court. This
analysis would single out cases like Baggett v. Bullitt, 377 U.S. 360 (1964) as instances justifying direct intervention. See Mr.
Justice Harlan’s dissent in Dombrowski, 380 U.S. at 500.
133
382 U.S. 39 (1965), affirming, 238 F. Supp. 779 (M.D. Ga. 1965). The District Court’s decision came down before Dombrowski
was decided.
134
Aelony v. Pace, 8 Race Rel. L. Rep. 1355 (M.D. Ga. 1963). Wells was arrested for violation of two statutes, GA. CODE § 26902, invalidated in Aelony (and before that in Herndon v. Lowry, 301 U.S. 242 (1937)), and § 26-904:
§ 26-902. Attempt to incite insurrection.
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State
shall constitute an attempt to incite insurrection.
§ 26-904. Circulating insurrectionary papers.
If any person shall bring, introduce, print, or circulate, or cause to be introduced, circulated, or printed, or aid or assist, or be in
any manner instrumental in bringing, introducing, circulating, or printing within this State any paper, pamphlet, circular, or any
writing, for the purpose of inciting insurrection, riot, conspiracy, or resistance against the lawful authority of the State, or against
the lives of the inhabitants thereof, or any part of them, he shall be punished by confinement in the penitentiary for not less than
five nor longer than 20 years.
The Solicitor General of Georgia dropped charges under the invalid § 26-902, but not under its counterpart. 238 F. Supp. at 783.
135
In Aelony, defendants were arrested while kneeling in prayer before the Americus, Georgia jail. Charged with inciting
insurrection, a capital offense, they were held without bond, until Chief Judge Tuttle ordered their release, five months after their
arrest. 8 Race Rel. Rep. 1355. In Wells, petitioner was arrested for circulation of fliers announcing a meeting to protest the
shooting of a Negro by a local police officer. The fliers were inflammatory, accusing the police of murder in this and other
instances. The meeting led to a march on City Hall, during which the district court found that bottles and bricks were thrown at
business establishments passed en route. After the petitioner, leader of the march, left to carry his protest message to city police
officials, the crowd turned to deliberate vandalism against several small white-owned shops. Hearing by telephone of the riot,
police arrested the petitioner while in conference with him. 238 F. Supp. at 782-83.
136
It is therefore not definite that absence of bad faith was perceived by the majority to be the crucial feature distinguishing Wells
from Dombrowski. They may have been less indignant about the provisions of the Georgia anti-insurrectionary circulation statute
than about Louisana’s adaptation of the Smith Act. Yet, the statute, at least insofar as it bans circulating, or aiding, or assisting,
etc., or circulating papers “for the purpose of inciting ... resistance against the lawful authority of the State ...,” seems at least as
defective as the invalid § 26-902.
137
381 U.S. 741 (1965). Cameron was handed down June 7, 1965, and hence preceded Wells v. Reynolds.
138
The legislative history of the statute is described in Chevigny, A Busy Spring in the Magnolia State, in SOUTHERN JUSTICE 13,
26-27 (1965). The law provides:
It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a
manner as to obstruct or unreasonably interfere with free ingress or egress to and from any public premises, State property, county
or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of
Mississippi, or any county or municipal government located therein, or with the transaction of public business or administration of
justice therein or thereon conducted or so as to obstruct or unreasonably interfere with free use of public streets, sidewalks, or
other public ways adjacent or contiguous thereto.
MISS. CODE ANN. § 2318.5(1) (Supp. 1964). Compare Cox v. Louisiana, 379 U.S. 536, 554-55 (1964).
139
381 U.S. 741, 745 (1965) (dissenting opinion of Black, J.); id. at 757 (dissenting opinion of White, J.).
140
380 U.S. at 487-88. Cf. Mr. Justice White’s dissent in Cameron v. Johnson, 381 U.S. at 755-56; Note, The Supreme Court: 1964
Term, 79 HARV. L. REV. 105, 170-71 (1965).
141
381 U.S. 741, 742 (1965).
142
Id. at 743. (Black, J.).
143
Id. at 747-48, 759.
144
See note 34 supra and accompanying text.
145
The suggested approach would produce less frequent disruption of state criminal administration than that proposed by Professor
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
Amsterdam. Amsterdam would have rules of comity suspended whenever a state criminal defendant could make out a colorable
claim that the conduct which the state labels criminal is a protected activity under the first and fourteenth amendments. He would
allow direct intervention, without a showing of a pattern of harassment directed at the defendant prior to the action. Amsterdam,
supra note 123, at 800. (Amsterdam’s argument in the cited article goes only to removal and habeas corpus devices for aborting
sham prosecutions, discussed at notes 156-58 infra, but his logic would extend to injunctive remedies also.) This proposal is based
on his assumption that all state courts, not just those of the deep South, are less likely than federal courts to protect the federal
rights of political minorities. Id. at 836-38, 909-10. For this assumption Professor Amsterdam offers no proof, and, indeed, all his
examples, especially the scenario at the beginning of the piece from which the argument takes off, are taken from the deep South.
If similar problems exist in other areas, there is certainly no justification for assuming that their gravity matches that obtaining in
the South. Federalism does compel federal institutions to intervene when necessary to protect minorities from political oppression.
It does not, however, support a presumption that such protection is always necessary, until it is shown to be so.
146
The artificiality of the distinction between pending and threatened prosecutions is illustrated by comparing the Wells v. Reynolds
situation, supra notes 133-36, with that presented by Cameron v. Johnson, supra notes 137-39. Although in Wells, defendant had
been arrested, charged, held in jail for a time, then released on $2,500 bail, his case was not a pending prosecution covered by §
2283, because no indictment had been filed. Cameron differed from Wells only in that it was a pending prosecution, to which,
under present law, § 2283 attaches, banning federal injunctive interference.
147
The statute provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
28 U.S.C. § 2283 (1964).
148
381 U.S. at 746-47. See note 146 supra.
149
Cameron v. Johnson, 244 F. Supp. 846 (S.D. Miss. 1964).
150
Cooper v. Hutchinson, 184 F.2d 119, 124 (3d Cir. 1950).
151
Smith v. Village of Lansing, 241 F.2d 856, 859 (7th Cir. 1957); Island S.S. Lines Inc. v. Glennon, 178 F. Supp. 292, 295 (D.
Mass. 1959) (alternative ground); cf. Baines v. City of Danville, 337 F.2d 579, 589 (4th Cir. 1964).
152
See Note, Developments in the Law—Injunctions, 78 HARV. L. REV. 994, 1050-51 (1965).
153
See Warren, Federal and State Court Interference, 43 HARV. L. REV. 345, 367-78 (1930). Indeed, the judicially drawn
distinction between “pending” and “threatened” or future proceedings is itself an exception to the reach of the anti-injunction
statute which has no basis in its express language.
154
Baines v. City of Danville, 321 F.2d 643, 644 (4th Cir. 1963) (issuing temporary restraining order); 337 F.2d 579, 599-600 (1964)
(dissenting opinion). Cf. 34 U.S.L. WEEK 2348 (1966) (rehearing en banc) (dissenting opinion).
155
See note 127 supra and accompanying text.
156
28 U.S.C. § 1443 (1964). The statute’s terms provide that:
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the
district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal
civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the
ground that it would be inconsistent with such law.
Civil rights lawyers have argued without success, in litigation and in print, that subsection (2) covers not only federal law
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enforcement officials, but also private persons exercising federal rights. Amsterdam, supra note 123. It appears that the courts
prefer to handle the problem of aborting state prosecutions under the more manageable provisions of § 1443(1).
157
Virginia v. Rives, 100 U.S. 313 (1880) and Kentucky v. Powers, 201 U.S. 1 (1906) held § 1443(1) applicable only to cases where
denial of equal rights was compelled by state statutory provisions. See note 28 supra. In Rachel v. Georgia, 342 F.2d 336 (5th Cir.
1965), Chief Judge Tuttle argued that this holding was merely ancillary to a major premise that the denial of equal rights had to
occur before trial. Therefore, he held, petitioners in Rachel were entitled to removal. Petitioners were prosecuted under state
trespass statutes while sitting in at a restaurant subsequently covered by Title II of the Civil Rights Act of 1964. The mere fact of
prosecution and trial, regardless of its outcome, denied them equal rights guaranteed by the act as construed in Hamm v. City of
Rock Hill, 379 U.S. 306 (1964).
This rule was subsequently applied and then extended to include all prosecutions instituted solely to discourage the exercise of
federal rights. Cooper v. Alabama, 353 F.2d 729; Rogers v. Tuscaloosa, 353 F.2d 78; Carmichael v. City of Greenwood, 352 F.2d
86; McNair v. City of Drew, 351 F.2d 498; Wechsler v. County of Gadsden, 351 F.2d 311; Cox v. Louisiana, 348 F.2d 750;
Peacock v. City of Greenwood, 347 F.2d 678, cert. granted, 86 Sup. Ct. 532 (1966); Robinson v. Florida, 345 F.2d 133. (all 5th
Cir. 1965). These cases have brought harassment under subsection (1) by holding that “bad faith” prosecution violates the Equal
Protection Clause of the fourteenth amendment, a “law providing for equal rights.” Judge Johnson of the Middle District of
Alabama has used the removal statute to make his court a fact-finder in the first instance in civil rights prosecutions. Compare
Forman v. Montgomery, 245 F. Supp. 17 with McMeans v. Mayor’s Court, 247 F. Supp. 606 (both M.D. Ala. 1965).
158
Virginia v. Rives, 100 U.S. 313 (1880); Kentucky v. Powers, 201 U.S. 1 (1906).
159
For recent reported decisions in which the removal statute has been invoked as a remedy for sham prosecution, see note 157
supra. Many other instances of successful resort to removal have not, of course, been reported, as they have not reached the
appellate level.
160
Judge Johnson of the middle district of Alabama has often ordered the appearance of the Department of Justice in controversial
cases to assure that his rulings would be enforced. Interview with federal official, Washington, D.C., Feb. 21, 1966.
161
Marshall’s book, FEDERALISM AND CIVIL RIGHTS, contains the lectures he delivered on that occasion. See Van Alstyne,
Book Review, 10 VILL. L. REV. 203, 207 (1964).
162
18 U.S.C. § 241 (1964); 18 U.S.C. § 242 (1964).
163
See generally FEDERALISM AND CIVIL RIGHTS.
164
Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 YALE L.J. 1297, 1298 (1965). Critics termed the argument
unpersuasive. Id. at 1298-99. It was also not entirely accurate. Under President Truman, a more active Department of Justice was
able to obtain convictions in the South with § 242. Koehler v. United States, 189 F.2d 711 (5th Cir. 1951), cert. denied, 342 U.S.
852 (1951); Lynch v. United States, 189 F.2d 476 (5th Cir.), cert. denied, 342 U.S. 831 (1951); Crews v. United States, 160 F.2d
746 (5th Cir. 1947).
Another problem widely believed to be a major obstacle to effective enforcement was also a chimera. This was the supposed
difficulty of proving specific intent in accordance with the requirements of Screws v. United States, 325 U.S. 91 (1945). Despite
the Screws test, Southern juries apparently, at least in some cases, returned convictions. According to an embittered footnote in
Justice Frankfurter’s opinion in Monroe v. Pape, some Southern federal trial judges sympathetic to the objectives of the statute
interpreted the rule in Screws somewhat liberally, to aid enforcement. 365 U.S. 167, 207 (1961). Once the Department decided to
reinvigorate the statutes in 1965, convictions proved obtainable.
165
The Department has prosecuted the notorious Schwerner-Goodman-Chaney slaying in Philadelphia, Mississippi, during the
summer of 1964. United States v. Price, 86 Sup. Ct. 1152 (1966); the Klansmen responsible for the death of Lemuel Penn in
Georgia during the same summer, United States v. Guest, 86 Sup. Ct. 1170 (1966); the Klansmen who killed Mrs. Viola Liuzzo
on a highway near Selma, Alabama, in 1965, N.Y. Times, Dec. 4, 1965, p. 1, col. 4; and those responsible for the firebomb
slaying of a Hattiesburg, Mississippi, druggist and incipient political leader of local Negroes, id., March 29, 1966, p. 1, col. 6.
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
166
See LAW ENFORCEMENT 116.
167
N.Y. Times, Dec. 4, 1965, p. 35, col. 2.
168
Burns, The Federal Government and Civil Rights, in SOUTHERN JUSTICE 228, 243.
169
FEDERALISM AND CIVIL RIGHTS 81.
170
United States v. U.S. Klans, 194 F. Supp. 897 (M.D. Ala. 1961) (the freedom riders crisis); Williams v. Wallace, 240 F. Supp.
100 (N.D. Ala. 1965) (Selma); United States v. Sampson, Civil No. GC 6449 (N.D. Miss., Sept. 2, 1964). But even in these cases,
the Department delayed even the limited mode of intervention of seeking injunctive relief until it was unavoidable. See
FEDERALISM AND CIVIL RIGHTS 64-65; LAW ENFORCEMENT 165-66.
171
SOUTHERN REGIONAL COUNCIL, LAW ENFORCEMENT IN MISSISSIPPI 22-23 (1965).
172
LAW ENFORCEMENT 180-81.
173
Interview with federal official, Washington, D.C, Feb. 21, 1966.
174
Ibid.
175
SOUTHERN REGIONAL COUNCIL, op. cit. supra note 171; Wasserstrom, Book Review, 33 U. CHI. L. REV. 406, 411-12
n.17 (1966).
176
Ex Parte Siebold, 100 U.S. 371, 394-95 (1880). See notes 68-73 supra and accompanying text.
177
See, e.g., Attorney General Kennedy’s remarks shortly after the Philadelphia, Mississippi slaying in June 1964, in N.Y. Times,
June 25, 1964, p. 18, col. 1.
178
Authority for any form of appropriate executive action to cope with mass deprivations of civil rights is manifestly granted by 10
U.S.C. § 333 (1964), originally enacted by the Radical Republicans, 17 Stat. 14 (1871):
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers
necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people
is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted
authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the
Constitution.
Even without explicit statutory authority, it would seem clear that the President has the power, if not the duty, to do whatever is
reasonably necessary to enforce federal law, including the application of federal force or the invocation of federal injunctive
prohibitions. Ex Parte Siebold, 100 U.S. 371, 394-95 (1880); In re Debs, 158 U.S. 564, 582 (1895). Cf. In re Neagle, 135 U.S. 1,
59 (1890).
Critics of Justice Department policy have repeatedly noted the transparency of official denials of power to act. LAW
ENFORCEMENT 144-66; Burns, supra note 168, at 235-40.
179
See note 117 supra; N.Y. Times, June 26, 1964, p. 15, col. 1.
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180
LAW ENFORCEMENT 180-81; SOUTHERN REGIONAL COUNCIL, op. cit. supra note 171, at 36-38.
181
LAW ENFORCEMENT 175.
182
Cf. Black, Paths to Desegregation, in THE OCCASIONS OF JUSTICE 145, 149-59 (1961).
183
United States v. Cruikshank, 92 U.S. 542, 554 (1876); United States v. Harris, 106 U.S. 629, 638-39 (1882). See Frantz,
Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 YALE L.J. 1353, 1353-54 (1964).
184
18 U.S.C. § 241 (1964).
185
The statute reads:
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right
or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured—
They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 241 (1964).
186
See note 167 supra.
187
86 Sup. Ct. 1170 (1966).
188
See notes 208-09 infra and accompanying text.
189
Cf. Frantz, supra note 183, at 1353. Few of the writers putting forth an interpretation of state action have distinguished between
the scope of section 1 of the fourteenth amendment itself and the scope of congressional power to “enforce” it. See Mr. Justice
Brennan’s opinion in United States v. Guest, 86 Sup. Ct. 1170, 191-92 (1966). See Van Alstyne & Karst, 14 STAN. L. REV. 3
(1961); Lewis, The Meaning of State Action, 60 COLUM. L. REV. 1083 (1960); Henkin, Shelley v. Kraemer; Notes for a Revised
Opinion, 110 U. PA. L. REV. 473 (1962). Cf. Mr. Justice Douglas’ opinion in Screws v. United States, 325 U.S. 91 (1945).
190
325 U.S. 91, 138-49 (1945) (joined by Roberts, J.).
191
365 U.S. 167, 211-23 (1961).
192
Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-22 (1961); Bell v. Maryland, 378 U.S. 226, 255-60 (1964) (opinion
of Douglas, J.). See generally Van Alstyne, Mr. Justice Black, Constitutional Review, and the Talisman of State Action, 1965
DUKE L.J. 219.
193
Lombard v. Louisiana, 373 U.S. 267 (1963); Peterson v. City of Greenville, 373 U.S. 244 (1963); Screws v. United States, 325
U.S. 91 (1945).
194
Cf. note 49 supra.
195
Frantz, supra note 183, at 1359-61; HARRIS, THE QUEST FOR EQUALITY 53 (1960).
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
196
See notes 72-74 supra and accompanying text.
197
See notes 78-79 supra and accompanying text.
198
See note 66 supra and accompanying text.
199
See note 65 supra and accompanying text.
200
Any rational means for reaching a constitutional objective is within Congress’ power under Chief Justice Marshall’s construction
of the necessary and proper clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). When in Prigg v. Pennsylvania,
Justice Story held Congress had implied power to secure the enjoyment of any constitutional right, the means open to Congress
under the Prigg doctrine were subject only to the McCulloch definition of the boundaries of necessary and proper power.
However, section five of the fourteenth amendment states explicitly that “the Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.” “Appropriate” could be read to confer more limited, more reviewable power
than “necessary and proper.” This limiting construction of section five is strengthened by the legislative history of the fourteenth
amendment. A first version of the amendment introduced in 1865 by the Joint Committee on Reconstruction explicitly conferred
necessary and proper power on Congress; it read: “Congress shall have power to make all laws which shall be necessary and
proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (Art. IV, § 2); and to all
persons in the several States equal protection in the rights of life, liberty and property.” The draft was eventually called back into
the Committee, when its Radical sponsors realized that it had no chance to gain the 2/3 vote necessary for passage. See JAMES,
THE FRAMING OF THE FOURTEENTH AMENDMENT 50 (1956). The proposed amendment then went through a series of
revisions, each one increasingly vague, with the final version appearing with the declaratory and enforcement sections separated.
Id. at 82-83. Professor Bickel has interpreted this maneuvering to mean that “Congress was not to have unlimited discretion and it
was not to have the leeway represented by the ‘necessary and proper’ power.” Bickel, The Original Understanding and the
Segregation Decision, 69 HARV. L. REV. 1, 60 (1955).
This legislative history has never figured in judicial interpretations of the terminology finally settled on by the thirty-ninth
Congress. After the Radicals in 1870-71 passed legislation which could be permitted only by equating “appropriate” with
“necessary and proper,” the Supreme Court’s decisions upsetting Reconstruction laws were based on the Court’s analysis of the
requirements of federalism. See Note, The Strange Career of “State Action” under the Fifteenth Amendment, 74 YALE L.J. 1448,
1449-54 (1965).
The Court’s use of “appropriate” as a vehicle for adjusting federal-state relations seems consistent with the imprecise intentions of
the framers of the amendment. See Bickel, supra, at 60-62. Changed conditions justify the present Court’s readjustment. See
notes 212-14 infra and accompanying text.
201
MATHEWS, LEGISLATIVE AND JUDICIAL HISTORY OF THE FIFTEENTH AMENDMENT 86, 92-93 (1909); Frantz,
supra note 183, at 1357-58; TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 98
(1951).
202
86 Sup. Ct. 1170 (1966).
203
Three rights were allegedly threatened by the defendant’s action: (1) the right to travel in interstate commerce; (2) the right to
enjoy equal access to places of public accommodation protected by Title II of the Civil Rights Act of 1964; and (3) the right to
equal access to state facilities secured by the fourteenth amendment.
204
80 Sup. Ct. at 1177.
205
Id. at 1191.
206
Id. at 1180.
207
Had they differed with the construction elaborated by Mr. Justice Brennan, it would seem that they would have made some
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
indication of the nature of their disagreement, especially since the tacit purpose of their remarks on the question was to provide
guidance for Congress in drafting scheduled new civil rights legislation. Cf. Mr. Justice Harlan’s disapproving footnote. 86 Sup.
Ct. at 1180 n.l.
208
See notes 78-79 supra and acompanying text.
209
It is, however, hardly true, as asserted by Mr. Justice Clark, that this conclusion can be wrung from “the specific language” of
section 5. 80 Sup. Ct. at 1180. See note 200 supra and accompanying text.
210
State law seems to give adequate protection against private interference. Of course, state law is believed to give very inadequate
protection against official interference with Reconstruction amendment rights, as the plethora of actions against police officials
under 42 U.S.C. § 1983 since Monroe v. Tape indicates. See Shapo, Constitutional Tort: Monroe v. Pape and The Frontiers
Beyond, 60 NW. U. L. REV. 277, 297-312 (1965).
211
See notes 199-201 supra and accompanying text. The differences between “appropriate” and “necessary and proper,” if they exist,
concern only what means Congress may use to secure federal supremacy; they do not alter the ultimate objective of
enforcement—the integrity of the Supremacy Clause.
212
See notes 116-18 supra and accompanying text.
213
18 U.S.C. § 2113 (1964).
214
18 U.S.C. §§ 2421-24 (1964).
215
18 U.S.C. §§ 1461-65 (1964).
216
18 U.S.C. §§ 1401-07 (1964).
217
18 U.S.C. § 1084 (1964).
218
Ironically, the same New York Times which reported the first modern conviction under 18 U.S.C. § 241, Assistant Attorney
General Doar’s triumph in the Liuzzo killing, also reported that a violator of the federal bank robbery statute had been sentenced
to death. N.Y. Times, Dec. 4, 1965, p. 1, col. 1. For reasons never articulated, the qualms about federal criminal jurisdiction
voiced whenever civil rights enforcement is under consideration, have never inhibited courts and commentators when discussing
other activities of the Criminal Division of the Justice Department, which have in fact eroded much more than civil rights criminal
statutes ever will the states’ monopoly of responsibility for criminal matters. This double-standard, though unconscious and
perhaps innocent, has been interpreted by civil rights advocates as subtle hypocrisy. Cf. Wasserstrom, Book Review, 33 U. CHI.
L. REV. 406 (1966).
219
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); NAACP v. Button, 371 U.S. 415 (1963).
220
The framers did not “intend” to incorporate the first eight amendments per se, but only those rights which are “fundamental.” See
generally Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?—the Original Understanding, 2 STAN. L.
REV. 5 (1949); Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U.
CHI. L. REV. 1 (1954). The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 80-81 (1873), cursorily dismissed the claim that the
equal protection or due process clauses could serve as well as the privileges and immunities clause as bases for incorporating
basic guarantees against state action into the amendment.
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
221
The Slaughterhouse Cases, supra note 220. See 2 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 5392
(1922).
222
The Slaughterhouse Cases, supra note 220, at 78.
223
The phrase is a contradiction in terms.
224
At present, almost all the essential rights guaranteed against federal invasion by the first eight amendments have been
incorporated. See Pointer v. Texas, 380 U.S. 400 (1965) (sixth amendment in its entirety); Malloy v. Hogan, 378 U.S. 1 (1964)
(self-incrimination privilege of the fifth amendment); Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961)
(fourth amendment); De Jonge v. Oregon, 299 U.S. 353 (1937) (first amendment speech and assembly).
225
380 U.S. 479 (1965). See notes 124-29 supra and accompanying text.
226
347 F.2d 679 (5th Cir. 1965), reversed, 34 U.S.L. WEEK 4572 (U.S. June 20, 1966).
227
28 U.S.C. § 1443(1) (1964).
228
347 F.2d 679, 684. See note 157 supra. Defendants in Peacock also advanced two other claims. They argued that § 1443(2)
supported removal under the first and fourteenth amendments, a contention rejected both by the Supreme Court and the Court of
Appeals. 34 U.S.L. WEEK 4572, 4573. They also argued that § 1443(1) dictated removal when defendants could not obtain a fair
trial in the state court in which their case was pending, in accordance with a literal reading of the subsection, id. at 4577, a claim
likewise ignored by the Circuit Court. 347 F.2d at 684.
229
34 U.S.L. WEEK at 4579. The leading cases were Kentucky v. Powers, 201 U.S. 1 (1906); Virginia v. Rives, 100 U.S. 313
(1880). In a companion case to Peacock, Georgia V. Rachel, 34 U.S.L. WEEK 4563, the Court unanimously opened the RivesPowers barrier just a crack. It allowed removal where sit-in demonstrators were arrested attempting to enforce Title II of the Civil
Rights Act of 1964. The Court argued that the public accommodations title of the Civil Rights Act was unique, in that its own
provisions authorized district court intervention to “substitute a right for a crime.” 34 U.S.L. WEEK at 4579. Thus, the Court in
effect construed the removal statute, which is an express grant of federal jurisdiction, in pari materia with the anti-injunction
statute, 28 U.S.C. § 2283 (1964), a withdrawal of jurisdiction. Even conceding arguendo that this analogy was valid, Mr. Justice
Douglas in dissent found that § 11(b) (the Kates proviso) of the Voting Rights Act of 1965 authorized direct intervention as
plainly as did § 203 of the 1964 Act. Id. at 4584.
230
Charges levelled at the defendants involved in the Peacock appeal included assault and battery, interfering with an officer, illegal
operation of motor vehicles, contributing to the delinquency of a minor, parading without a permit, disturbing the peace, and
inciting a riot. See the dissenting opinion, 34 U.S.L. WEEK at 4580.
231
Mr. Justice Stewart’s opinion trotted out the classic separate function maxim—comity requires that the good faith of state officials
be presumed but never actually scrutinized:
The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the
state judiciary on trial.
34 U.S.L. WEEK at 4578. Compare Mr. Justice Harlan’s opinion for the Court in Harrison v. NAACP, 360 U.S. 167 (1959),
discussed in notes 39-40 supra and accompanying text. The Court went on to intimate that federal supervision would stunt the
growth of respect for federal supremacy among Southern state judges, a claim rather difficult to down. 34 U.S.L. WEEK at 4580.
232
Only a failure to compare Madisonian federalism theory with present-day political realities can lead to reification of the paper
resemblance between the state and federal governments—as Mr. Justice Douglas noted. Id. at 4580. See notes 78-79 supra and
accompanying text.
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
233
Id. at 4579.
234
Removal has not in fact been widely abused by defense lawyers, as Mr. Justice Stewart seems tacitly to fear. It has operated
almost without exception in genuine civil rights cases, and at that almost exclusively in those areas of the deep South where
harassment is prevalent.
235
See note 34 supra and accompanying text. Other remedies for civil rights violations mentioned by the Court, 34 U.S.L. WEEK at
4578, are not the answer to sham prosecutions. Immediate release is the proper remedy, not Supreme Court reversal three or four
years in the future, and not the uncertain, cumbersome, and likely disproportionate sanction of federal criminal or civil liability.
236
See text following note 47 supra.
237
The career of Mr. Justice Stewart, who wrote the Court’s Peacock opinion, provides an ironic example. After a distinguished
sojourn in the public life of his home-town, Cincinnati, Ohio, Stewart graduated to a place on the Court of Appeals for the Sixth
Circuit. As an appellate judge, he would have been ideally equipped to play a significant supervisory role, had Cincinnati
encountered problems like those of present-day Mississippi and Alabama.
238
Consider the tone of Judge Wisdom’s dissent in Dombrowski v. Pfister, 227 F. Supp. 556, 569-71 (E.D. La. 1964), rev’d, 380
U.S. 479 (1965):
The Court declined to act on the constitutional issues the case presents and refused the plaintiffs an opportunity to offer evidence
in proof of their case .... To me, the majority’s decision appears to rest on a sort of visceral feeling that somehow, if relief were
granted, the Court would be impinging on States’ Rights.
***
“States’ Rights” are mystical, emotion-laden words. For me, as for most Southerners, the words evoke visions of the hearth and
defense of the homeland and carry the sound of bugles and the beat of drums. But the crowning glory of American federalism is
not states’ Rights. It is the protection the United States Constitution gives to the private citizen against all wrongful governmental
invasion of fundamental rights and freedoms.
When the wrongful invasion comes from the State, and especially when the unlawful state action is locally popular or when there
is local disapproval of the requirements of federal law, federal courts must expect to bear the primary responsibility for protecting
the individual. This responsibility is not new. It did not start with the School Segregation Cases. It is close to the heart of the
American Federal Union. It is implicit in the replacement of the Articles of Confederation by the Constitution. It makes
federalism workable.
Joining Judge Wisdom as leaders of the effort to bring the Constitution to the deep South have been Judges Rives, Brown, and
Chief Judge Tuttle of the Fifth Circuit and Judges Sobeloff and Bell of the Fourth Circuit. See, e.g., cases cited in notes 154 and
157 supra.
End of Document
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32
THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
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Title
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Type
1. Brief Amici Curiae and Appendix for National Committee Against
Jan. 25, 1968
Discrimination in Housing, National Association for the Advancement of
Colored People, Anti-Defamation League of B’nai B’rith and the ...
Joseph Lee JONES and Barbara Jo Jones, Petitioners, v. ALFRED H. MAYER
COMPANY, a corporation, Alfred Realty Company, a corporation, Paddock
Country Club, Inc., a corporation, Alfred H. Mayer, an individual, and an officer
of the above corporations, Respondents.
1968 WL 129313, *129313+ , U.S.
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Jun. 19, 1972
Case
Oct. 16, 1967
Case
Jul. 30, 1969
Case
Jul. 03, 1968
Case
Mar. 01, 1968
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Feb. 28, 1977
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92 S.Ct. 2151, 2160 , U.S.Fla.
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Complaint for injunctive and declaratory relief wherein plaintiff alleged that
actions of state judicial and law enforcement officials in closing down his
bookstore as a public...
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385 F.2d 734, 747 , 5th Cir.(Ala.)
Actions by United States against county and officials thereof for injunctive and
other relief. From adverse judgments of the United States District Court for the
Southern District...
4. Steadman v. Duff
302 F.Supp. 313, 316 , M.D.Fla.
Petition for habeas corpus in which the District Court, William A. McRae, Jr., J.,
held, inter alia, that right to counsel should have been afforded petitioner where
a 210-day...
5. Landry v. Daley
288 F.Supp. 200, 207+ , N.D.Ill.
Proceedings on motion to dismiss action seeking injunction against state court
prosecutions. The District Court, Will, J., held that allegations, that state
statutes and municipal...
6. Landry v. Daley
280 F.Supp. 938, 947 , N.D.Ill.
Class action was brought by certain Negroes and association of Negroes
against city and state officials for declaratory judgments and injunctions. The
District Court, sitting as a...
7. Brody v. Leamy
393 N.Y.S.2d 243, 251 , N.Y.Sup.
Plaintiff brought an action in state court against a member of the New York
State Police Department, asserting a cause of action under the Civil Rights Act
of 1871 on allegations...
8. Appellant’s Supplemental Brief on Reargument
Younger v. Harris
1970 WL 121875, *121875+ , U.S.
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
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THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
Title
Date
Type
Depth
9. Appellant’s Supplemental Brief on Reargument
Younger v. Harris
1970 WL 122042, *122042+ , U.S.
Feb. 26, 1970
Brief
10. Appellant’s Supplemental Brief on Reargument
Younger v. Harris
1970 WL 136599, *136599+ , U.S.
Feb. 26, 1970
Brief
11. Appellees’ Supplemental Brief on Reargument
Evelle J. YOUNGER, Appellant, v. John HARRIS, Jr., et al., Appellees.
1969 WL 100913, *100913 , U.S.
Sep. 26, 1969
Brief
12. Brief for the Petitioners
Jan. 18, 1968
Joseph Lee JONES and Barbara Jo Jones, Petitioners, v. ALFRED H. MAYER
COMPANY, a Corporation, Alfred Realty Company, a Corporation, Paddock
Country Club, Inc., a Corporation, Alfred H. Mayer, an Individual, and an
Officer of the Above Corporations, Respondents.
1968 WL 129310, *129310+ , U.S.
Brief
Nov. 03, 1971
Case
1969
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1992
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457, 480
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2000
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450 F.2d 1227, 1234 , 8th Cir.(Mo.)
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by human rights demonstrators. The United States District Court for the
Eastern District of Missouri,...
14. MANDATORY CY PRES AND THE RACIALLY RESTRICTIVE
CHARITABLE TRUST, 69 Colum. L. Rev. 1478, 1495
The racially restricted charitable trust has come under increasing attack as
representing nothing more than the legally assisted institutionalization of
private racial...
15. PRISONER CIVIL RIGHTS: THE NEED FOR THE IMPLEMENTATION
OF ADEQUATE INMATE GRIEVANCE MECHANISMS, 66-JUN Fla. B.J. 91,
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AGENDA?, 16 Ga. St. U. L. Rev. 517, 572+
In recent years, the United States Supreme Court has developed a “new”
federalism doctrine. The Court’s “new” federalism seeks to elevate the power
of state governments over that...
18. I. INTRODUCTION, 90 Harv. L. Rev. 1135, 1137+
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34
THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
Title
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changed...
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POST-BROWN SOUTH. BY MICHAL BELKNAP. ATHENS: UNIVERSITY, 87
Mich. L. Rev. 1599, 1614+
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1190+
In its modern interpretation of section 1983, the Supreme Court has, to a
considerable extent, purported to rely upon the legislative history of the statute.
The seminal decision...
20. LIMITING THE SECTION 1983 ACTION IN THE WAKE OF MONROE V.
PAPE, 82 Harv. L. Rev. 1486, 1511
For several decades after its passage, section one of the Civil Rights Act of
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of much Reconstruction...
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22. FEDERAL-QUESTION ABSTENTION: JUSTICE FRANKFURTER’S
DOCTRINE IN AN ACTIVIST ERA, 80 Harv. L. Rev. 604, 622
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23. THE ACTIVIST INSECURITY AND THE DEMISE OF CIVIL RIGHTS
LAW, 63 La. L. Rev. 785, 873
Civil rights law is today moribund. An impressive edifice, built upon the ruins of
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35
THEORIES OF FEDERALISM AND CIVIL RIGHTS, 75 Yale L. J. 1007
Title
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changed from its mother to its father. The mother claimed indigency and asked
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36